If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 77 before 4:00 p.m. the day prior to the motion hearing. The e-mail address is SMCDept77@lacourt.org. The heading on your e-mail should contain the case name and number, and that you submit. For example, "Smith v. Jones 14K01234, submit". The message should indicate your name, contact information, and the party you represent.

Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

Case Number: 04CF0763    Hearing Date: January 24, 2017    Dept: 77

Defendant Helen Chung’s Motion to Vacate Default and Default Judgment is TAKEN OFF CALENDAR. CCP § 128 and CRC 10.603. This is a collections case. Accordingly, this matter is transferred to the Norwalk Courthouse. Moving party to contact department SEY to set a new hearing date for the motion, with no additional filing fee required. Clerk to give notice.

Case Number: 05CB1969    Hearing Date: January 23, 2017    Dept: 77

Due to Judge Yolanda Orozco’s unavailability, Plaintiff Cadlerock Joint Venture II, L.P.’s Motion for Order Authorizing Earnings Withholding Order as to Judgment Debtor’s Spouse is CONTINUED to March 9, 2017. CCP § 128. Clerk to give notice.

Case Number: 06K03797    Hearing Date: January 23, 2017    Dept: 77

Plaintiff Mountain Peaks Financial’s Motion for Nunc Pro Tunc Order to Allow Filing of Renewal of Judgment is DENIED.

Following Defendant Natashia Arline’s (“Defendant / Judgment Debtor”) default, judgment was entered against her on June 6, 2006 in the amount of $5,219.00 in favor of Plaintiff Mountain Peaks Financial (“Plaintiff / Judgment Creditor”). The original judgment was set to expire on June 6, 2016. On May 25, 2016, Plaintiff filed an application for renewal of judgment pursuant to CCP section 683.110, et seq. (Motion, Exh. B.) The application was rejected on June 13, 2016. (Id. at Exh. D.) Plaintiff contends that the rejection was improper and requests that the court use its inherent power to issue an order nunc pro tunc to deem Plaintiff’s Application for Renewal of Judgment timely filed as of May 25, 2016 and renew the judgment.

The rejection was proper. The application for renewal did not comply with the provisions of CCP section 683.140, which states in relevant part: “The application for renewal of judgment shall be executed under oath and shall include all of the following . . . (c) The name and address of the judgment creditor . . . .” (CCP § 683.140(c).) Instead, Plaintiff / Judgment Creditor improperly listed its counsel, Bergstrom Law, Ltd. as the applicant. (Motion, Exh. B, Application for Renewal, ¶1.) Therefore, the May 26, 2016 application did not provide Plaintiff / Judgment Creditor’s name and address at paragraph 1, as required. In its motion, Plaintiff / Judgment Creditor contends, without legal authority, that it is proper to name its attorney of record as the applicant. CCP section 683.110, et seq., however, makes clear that the applicant must be the judgment creditor or assignee. (CCP § 683.110, et seq.) Plaintiff / Judgment Creditor also does not explain why it did not submit a corrected application, as requested in the notice of rejection. (See id. at Exh. D.)

Based on the foregoing, the motion for nunc pro tunc order to allow filing of renewal of judgment, and for an order deeming the application for renewal of judgment timely filed, is denied.


Moving party to give notice.

Case Number: 08K18165    Hearing Date: January 24, 2017    Dept: 77

Defendant The Hertz Corporation’s Motion to Vacate and Set Aside Abandoned Judgment is CONTINUED to March 7, 2017. CCP § 128. Plaintiff’s counsel was not served at the address of record, but at an address in Sherman Oaks.

The court notes that there are two addresses for Plaintiff’s counsel, Rory W. Clark, in the court’s file: 30699 Russell Ranch Rd. Ste. 215. Westlake Village, CA 91362; and 5743 Corsa Avenue, Suite 215, Westlake Village, CA 91362-6467. Further, the State Bar of California website reflects that Mr. Clark’s address is 9400 Venice Blvd, Culver City, CA. 90232-2624.

The moving papers are silent as to whether counsel for Defendant ever attempted to contact Plaintiff’s counsel at these addresses. Accordingly, this motion is continued. At a minimum Defendant should attempt to contact Plaintiff’s counsel and serve Plaintiff’s counsel at all three of these addresses. Defendant to file a supplemental declaration regarding the further attempt to contact Mr. Clark and Proof of Service of Mr. Clark at the Westlake Village and Culver City addresses with the court by February 17, 2017.

Clerk to give notice.

Case Number: 13CC0424    Hearing Date: January 24, 2017    Dept: 77

Cross-Defendant Safeway Insurance Company’s Demurrer to the Third Amended Cross-Complaint is CONTINUED to March 7, 2017. CCP § 128. Currently, the court is not in possession of the Third Amended Cross-Complaint as the file is missing. As such, this demurrer is continued. Cross-Defendant to provide a courtesy copy of the Third Amended Cross-Complaint directly in department 77 by February 17, 2017. Clerk to give notice.

Case Number: 13CC0424    Hearing Date: January 26, 2017    Dept: 77

Cross-Defendant Infinity Insurance Company’s Demurrer to the Third Amended Cross-Complaint is CONTINUED to March 7, 2017. CCP § 128. Currently, the court is not in possession of the Third Amended Cross-Complaint as the file is missing. As such, this demurrer is continued. Cross-Defendant to provide a courtesy copy of the Third Amended Cross-Complaint directly in department 77 by February 17, 2017. Clerk to give notice.

Case Number: 13K17957    Hearing Date: January 23, 2017    Dept: 77

Plaintiffs Hartford Fire Insurance Company, Twin City Fire Insurance Company, and Sentinal Insurance Company’s Motion for an Order Vacating Dismissal and Entering Judgment Against Defendant Pursuant to CCP § 664.6 is GRANTED.

The Court has the authority to enforce the settlement agreement entered into between the parties per CCP § 664.6. Defendant Cinetcomm, LLC has failed to timely pay Plaintiffs the amount due under the settlement and therefore, is in default on the terms of the settlement agreement. The dismissal entered on August 4, 2014 is set aside. Judgment is proper against Defendant Cinetcomm, LLC in the principal amount of $5,508.74 (stipulated judgment of $12,855.84 less $7,347.10 paid). Court costs are disallowed because they are not clearly provided for in the Stipulation, and Plaintiff has failed to submit any justification for the amount of costs requested. Judgment entered this date.

Moving party to give notice.

Case Number: 14K06402    Hearing Date: January 23, 2017    Dept: 77

Defendant Rinat Tal’s Demurrer to Complaint is TAKEN OFF CALENDAR. CCP § 128. Plaintiff is entitled to amend at least once without leave to court before the answer or demurrer is filed; or if Defendant demurs, before the opposition is due on the hearing on the demurrer. CCP § 472(a). A First Amended Complaint was filed on January 6, 2017, before the time in which an opposition was due. Therefore, the Court finds that the First Amended Complaint was timely and properly filed, and the demurrer is now taken off calendar as moot. Moving party to give notice.

Case Number: 14K08991    Hearing Date: January 23, 2017    Dept: 77

Plaintiff State Farm Mutual Automobile Insurance Company is ordered to pay Defendant Joshua Raymond Roberts’s First Appearance Fee of $370.00 prior to proceeding on the motion. If defendant Roberts’s First Appearance Fee is not paid prior to the January 23, 2017 hearing on the motion, the motion will be continued to March 13, 2017 at 8:30 am.

Upon payment of Defendant Roberts’s First Appearance Fee, Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Vacate Dismissal, Enforce Settlement and Enter Judgment is GRANTED.

The Court has the authority to enforce the settlement agreement entered into between the parties per CCP § 664.6. Defendant has failed to timely pay Plaintiff the amount due under the settlement and therefore, is in default on the terms of the settlement agreement. The dismissal entered on January 28, 2016 is set aside. Judgment is proper against Defendant Joshua Raymond Roberts in the principal amount of $20,967.54 (stipulated judgment of $21,992.54 less $1,025 paid), plus court costs of $268.00, and interest at a rate of 7% from March 12, 2012 in the amount of $6,445.94, for a total Judgment of $27,681.48. Judgment signed this date.

Moving party to give notice.

Case Number: 14K10856    Hearing Date: January 25, 2017    Dept: 77

Plaintiff State Farm Mutual Automobile Insurance Company’s Motion to Enforce Settlement Agreement and Enter Judgment is GRANTED.

The Court has the authority to enforce the settlement agreement entered into between the parties per CCP § 664.6. Defendant has failed to timely pay Plaintiff the amount due under the settlement and therefore, is in default on the terms of the settlement agreement. Judgment is proper against Defendant William Campbell Whitted III in the principal amount $16,000.00 (stipulated judgment of $25,000 less $16,000 paid), plus court costs of $266.00, and interest of $2,187.84 for a total Judgment of $18,453.84. Judgment entered this date.

Moving party to give notice.

Case Number: 14K12225    Hearing Date: January 24, 2017    Dept: 77

Defendants Jamie Walsh and Acclaimed Movers and Storage, Inc.’s Motion to Compel Responses to Form Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Plaintiff Harold G. Becks is ordered to serve verified responses to Defendants’ Form Interrogatories, without objections, within 20 days.

Defendants Jamie Walsh and Acclaimed Movers and Storage, Inc.’s Motion to Compel Responses to Demand for Production of Documents, Set One; Request for Sanctions is GRANTED. CCP § 2031.300. Plaintiff Harold G. Becks is ordered to serve verified responses to Defendants’ Document Demands, without objections, within 20 days.

The Court finds Plaintiff Harold G. Becks’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded in the amount of $1,020.00, representing 3 hours for drafting both motions and for appearance at the hearing, at $300.00 per hour, plus two $60.00 filing fees. Plaintiff Harold G. Becks is ordered to pay sanctions to Defendants and their attorney in the amount of $1,020.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

Case Number: 14K15501    Hearing Date: January 23, 2017    Dept: 77

Plaintiff Dinsmore & Sandelmann, LLP’s Motion to Set Aside Dismissal is GRANTED. CCP § 473(b).

Plaintiff has filed this request for relief less than six months after the dismissal. The motion is in proper form and is accompanied by an attorney’s sworn affidavit of fault attesting to his/her mistake, inadvertence, surprise or neglect. For good cause shown, relief is proper per CCP § 473(b).

The dismissal entered on May 20, 2016 in this matter is hereby set aside. The case is set for trial on October 26, 2017, at 8:30 a.m., in Department 77.

The Court also has the discretion to impose a penalty against the attorney. CCP § 473(c). As such, the Court imposes a penalty on Plaintiff’s Counsel Ana Marie Sulit Schmidt of $250 payable to the Los Angeles Superior Court within 30 days. CCP § 473(c)(1)(a).

Moving party to give notice.

Case Number: 14K15551    Hearing Date: January 23, 2017    Dept: 77

Plaintiff Fireman’s Fund Insurance Company’s Motion to Set Aside Dismissal is GRANTED. CCP § 473(b).

Plaintiff has filed this request for relief less than six months after the dismissal. The motion is in proper form and is accompanied by an attorney’s sworn affidavit of fault attesting to his/her mistake, inadvertence, surprise or neglect. For good cause shown, relief is proper per CCP § 473(b).

The dismissal entered on May 20, 2016 in this matter is hereby set aside. The case is set for trial on October 26, 2017, at 8:30 a.m., in Department 77.

The Court also has the discretion to impose a penalty against the attorney. CCP § 473(c). As such, the Court imposes a penalty on Plaintiff’s Counsel Lee M. Mendelson of $250 payable to the Los Angeles Superior Court within 30 days. CCP § 473(c)(1)(a).

Moving party to give notice.

Case Number: 15A12754    Hearing Date: January 25, 2017    Dept: 77

Defendant Donald A. Hilland’s Motion to Compel Arbitration is MOOT. CCP §§ 128 and 1281.2 et seq. On December 2, 2015 the Court ordered binding arbitration and stayed the action. As noted in the moving papers, the parties have already been ordered to arbitration. Therefore, this motion is moot.

However, it has been brought to the court’s attention that Plaintiff is refusing to participate in arbitration. As such, the Court sets an Order for Plaintiff to Show Cause why sanctions should not be imposed for Plaintiff’s failure to proceed to arbitration as ordered by this court on December 2, 2015. CCP § 177.5. The Order to Show Cause hearing is set for March 22, 2017 at 8:30 a.m. in Department 77.

Moving party to give notice.

Case Number: 15A15038    Hearing Date: January 23, 2017    Dept: 77

Defendant Lennon Hobson’s Motion for Sanctions is CONTINUED to March 13, 2017. CCP § 128. The court has previously granted Defendant Lennon Hobson more than one continuance to file supplemental briefing in support of Defendant’s Motion for Sanctions. At this time the court is still not in receipt of any second supplemental brief, which was due on January 13, 2017. As such, this motion is continued. A courtesy copy of the second supplemental brief is to be filed directly in department 77 by February 24, 2017. Late filed paper will not be considered by the court and will result in the motion being taken off calendar. Clerk to give notice.

Case Number: 15K04482    Hearing Date: January 24, 2017    Dept: 77

Due to Judge Yolanda Orozco’s unavailability, Petitioner John Barrett’s Petition to Vacate Arbitration Award is CONTINUED to March 9, 2017. CCP § 128. Clerk to give notice.

Case Number: 15K04579    Hearing Date: January 23, 2017    Dept: 77

Defendant/Cross-Complainant Standard Insurance Company’s Motion for Summary Judgment is CONTINUED to February 21, 2017 at 8:30 am. CCP § 128. On August 27, 2016, the parties stipulated to continue the hearing date on this motion, in part so that Plaintiff Sylvia Bedrossian would have time to file a response to Defendant’s Motion for Summary Judgment. As of today’s date, the court is still not in receipt of any Opposition from Plaintiff Bedrossian. As such, Defendant/Cross-Complainant Standard Insurance Company’s Motion for Summary Judgment is CONTINUED to February 21, 2017 at 8:30 am. Plaintiff Bedrossian to serve and file directly in Department 77 any Opposition to the Summary Judgment Motion by February 3, 2017. Defendant/Cross-Complainant Standard Insurance Company to serve and file directly in Department 77 any reply by February 10, 2017. Late filed paper will not be considered by the court.

Clerk to give notice.

Case Number: 15K06495    Hearing Date: January 24, 2017    Dept: 77

1.
Defendant Luis Alberto Sanchez-Rodriguez’s Motion to Compel Responses to Form Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Plaintiff Victor J. Terry is ordered to serve verified responses to Defendant’s Form Interrogatories, without objections, within 20 days.

Defendant Luis Alberto Sanchez-Rodriguez’s Motion to Compel Responses to Demand for Production of Documents, Set One; Request for Sanctions is GRANTED. CCP § 2031.300. Plaintiff Victor J. Terry is ordered to serve verified responses to Defendant’s Document Demands, without objections, within 20 days.


The Court finds Plaintiff Victor J. Terry’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded against Plaintiff Victor J. Terry in the amount of $420.00, representing 2 hours for drafting the motions and for appearance at the hearing, at $150.00 per hour, plus two $60.00 filing fees. Plaintiff Victor J. Terry is ordered to pay sanctions to Defendant and his attorney in the amount of $420.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

2.
Defendant Luis Alberto Sanchez-Rodriguez’s Motion to Compel Responses to Form Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Plaintiff Carla Escobar is ordered to serve verified responses to Defendant’s Form Interrogatories, without objections, within 20 days.

Defendant Luis Alberto Sanchez-Rodriguez’s Motion to Compel Responses to Demand for Production of Documents, Set One; Request for Sanctions is GRANTED. CCP § 2031.300. Plaintiff Carla Escobar is ordered to serve verified responses to Defendant’s Document Demands, without objections, within 20 days.

The Court finds Plaintiff Carla Escobar’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded against Plaintiff Carla Escobar in the amount of $420.00, representing 2 hours for drafting the motions and for appearance at the hearing, at $150.00 per hour, plus two $60.00 filing fees. Plaintiff Carla Escobar is ordered to pay sanctions to Defendant and his attorney in the amount of $420.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

Case Number: 15K08983    Hearing Date: January 23, 2017    Dept: 77

Defendant Tom Bronnon’s Motion to Set Aside Default is TAKEN OFF CALENDAR. CCP § 128. Plaintiff filed a Request for Dismissal on December 27, 2017, rending this motion moot. As such, this motion is taken off calendar. Clerk to give notice.

Case Number: 15K09703    Hearing Date: January 24, 2017    Dept: 77

Plaintiff Avis Rent-A-Car System, LLC’s Motion for Order Establishing Admissions, Set One; Request for Sanctions is GRANTED. Defendant Ayana Dawn Bennison is deemed to have admitted the Requests for Admissions as of this date. CCP § 2033.280.

Pursuant to CCP § 2033.420, it is mandatory that the court impose a monetary sanction under Section 2023 on the party or attorney, or both, whose failure to serve a timely response to request for admissions necessitated this motion. Further, the Court finds Defendant Ayana Dawn Bennison’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded in the amount of $810.00, representing 1 hour for drafting the motion and 1 hour for appearance at the hearing, at $375.00 per hour, plus the $60.00 filing fee. Defendant Ayana Dawn Bennison is ordered to pay sanctions to Plaintiff and its attorney in the amount of $810.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

Case Number: 16A00652    Hearing Date: January 31, 2017    Dept: 77

Plaintiff Access Multilingual Services, Inc.’s Motion for Judgment on the Pleadings is DENIED. CCP § 438(c).

A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for a demurrer has expired. Grounds for a motion by Plaintiff (or Cross-Complainant) are: (1) the Complaint (or any cause of action therein) states facts sufficient to constitute a cause of action against the Defendant (or Cross-Defendant) and (2) the Answer does not state facts sufficient to constitute a defense to the Complaint. CCP §438(c). The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which are judicially noticeable.

Initially, the Court notes that Plaintiff’s request for judicial notice is granted in part. The Court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. Evid. Code § 452(d). The Court may take judicial notice of facts not reasonably subject to dispute and “capable of immediate and accurate verification by resort to sources of reasonably indisputable accuracy.” Evid. Code § 452(h). Plaintiff has asked the Court to take judicial notice of the check at issue (Exhibit A), Defendant’s answer (Exhibit B) and Defendant’s discovery responses (Exhibit C). Defendant has filed an objection to Plaintiff’s request for judicial notice, Exhibit A. Looking at the arguments made by the parties, the Court takes judicial notice of Exhibits B and C only. The Court declines to take judicial notice of Exhibit A, the check, pursuant to Evid. Code § 452(h).

The basis of this motion is that it was undisputed that plaintiff drew a check in the amount of $6,000.00 to the order of Defendant and that the words were written on the check that stated “loan with no interest.” However, in light of the Court’s ruling on Plaintiff’s request for judicial notice, Plaintiff has not shown that the complaint states a cause of action against Defendant and that the answer does not state facts sufficient to constitute a defense to the complaint. Even had the court been inclined to find that none of the affirmative defenses applied to the cause of action for money lent, the answer contains a general denial. As such, judgment on the pleadings would have been improper as to the complaint. Based on the foregoing, this motion is denied.

Moving party to give notice.

Case Number: 16K00611    Hearing Date: January 24, 2017    Dept: 77

Defendant R.H.N. Company’s Motion for Attorneys’ Fees and Costs is GRANTED in the amount of $2,859.03. Plaintiff Fatemeh Barani’s Request for Judicial Notice is also granted.

Background

Plaintiff Fatemeh Barani (“Plaintiff”) filed the instant action against Defendant R.H.N. Company (“Defendant”) for breach of contract, common counts and unjust enrichment. Plaintiff had leased an apartment from Defendant. Following her eviction in an unlawful detainer action, Plaintiff sought to recover her security deposit. On May 23, 2016, the court sustained Defendant’s demurrer to the Complaint without leave to amend in this action on the grounds that all claims were barred by res judicata. Specifically, Defendant had previously prevailed in a smalls claim action Plaintiff had filed seeking to recover her security deposit.

On September 9, 2016, the court entered judgment in this action in Defendant’s favor, and the clerk of the court mailed written notice of the entry of judgment to Plaintiff’s counsel.

Request for Judicial Notice

Plaintiff requests that the court take judicial notice of the following documents from the court file in this action: (1) [Proposed] Order of Dismissal; (2) Order of Dismissal Judgment #1 of 1; and (3) Clerk’s Certificate of Service. The request is granted pursuant to Cal. Evidence Code section 452(d).

Discussion

A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract. (CCP §§ 1032(a)(4); 1033.5(a)(10)(A).) Similarly, CCP section 1717 provides that attorneys’ fees and costs shall be awarded to the prevailing party in an action on a contract, where the contract specifically provides for attorneys’ fees and costs. (CCP § 1717(a).)

A motion for attorneys’ fees must be filed and served within the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, notice of the entry of the judgment was never served on Defendant by the court clerk. Accordingly, the 90-day deadline applies. Judgment was entered on September 9, 2016. The instant motion was timely filed on November 14, 2016 -- 68 days after entry of judgment.

It is undisputed that Defendant is the prevailing party in this action and entitled to recover its attorneys’ fees and costs. The parties’ lease provides for recovery of attorneys’ fees by the prevailing party. (Motion, Exh. A, ¶3.) Defense counsel bills his work at $225.00 per hour, and has incurred attorneys’ fees of $2,859.03. (Motion, Brackins Decl., ¶¶10-11.) This means defense counsel spent 12.7 hours on this matter ($2,859.03 / $225.00). This is a reasonable amount of time to obtain a favorable judgment following a demurrer that was sustained without leave to amend. Plaintiff offers no reason to find this this amount of time was excessive or unreasonable. Therefore, Defendant’s Motion for Attorneys’ Fees and Costs is granted in the amount of $2,859.03.

Therefore, Defendant’s Motion for Attorneys’ Fees and Costs is GRANTED in the amount of $2,859.03.

Defendant to give notice.

Case Number: 16K00718    Hearing Date: January 23, 2017    Dept: 77

Plaintiff Creditors Adjustment Bureau’s Motion for Summary Judgment is TAKEN OFF CALENDAR. CCP § 128 and CRC 10.603. This is a collections case. Accordingly, this matter is transferred to the Norwalk Courthouse. Moving party to contact department SEY to set a new hearing date for the motion, with no additional filing fee required. Clerk to give notice.

Case Number: 16K04330    Hearing Date: January 23, 2017    Dept: 77

The hearing on release of funds is CONTINUED to April 10, 2017 at 8:30 am. CCP § 128. The court notes that on October 14, 2016, Claimant Bradley Burson filed a Notice of Ruling. However, the Notice of Ruling does not sufficiently give notice of the purpose of the hearing set for January 23, 2017. Specifically, nowhere in the notice does Claimant Burson warn any other party that the hearing concerns the release of funds, that all other interested parties who wish to pursue a claim must file a written claim prior to the hearing, and/or that all potential claimants must personally appear to pursue a claim to the funds. As such, the hearing on this matter is continued. Claimant Bradley Burson is ordered to give notice that the new hearing date concerns the release of deposited funds, that all other interested parties who wish to pursue a claim must file a written claim prior to the hearing, that all parties filing a claim must personally appear, and that failure to file a written claim prior to April 10, 2017 or failure to appear on April 10, 2017 will result in the claim being forfeited. Claimant Bradley Burson to file proof of service of this notice directly in Department 77 no later than February 10, 2017.

Case Number: 16K04388    Hearing Date: January 25, 2017    Dept: 77

Defendants Darlene Cohn and Michael Cohn’s Motion to Compel Responses to Form Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Plaintiff Ilager McMoore is ordered to serve verified responses to Defendants’ Form Interrogatories, without objections, within 20 days.

Defendants Darlene Cohn and Michael Cohn’s Motion to Compel Responses to Special Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Plaintiff Ilager McMoore is ordered to serve verified responses to Defendants’ Special Interrogatories, without objections, within 20 days.

Defendants Darlene Cohn and Michael Cohn’s Motion to Compel Responses to Demand for Production of Documents, Set One; Request for Sanctions is GRANTED. CCP § 2031.300. Plaintiff Ilager McMoore is ordered to serve verified responses to Defendants’ Document Demands, without objections, within 20 days.

The Court finds Plaintiff Ilager McMoore’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded in the amount of $845.00, representing 5 hours for drafting the three motions and for appearance at the hearing, at $133.00 per hour, plus three $60.00 filing fees. Plaintiff Ilager McMoore and his attorney Gregory Chudacoff are ordered to pay sanctions to Defendants and their attorney in the amount of $845.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

Case Number: 16K06359    Hearing Date: January 23, 2017    Dept: 77

Defendant Scott Pieper’s Motion to Strike Plaintiff’s Complaint is TAKEN OFF CALENDAR. CCP § 128. A Request for Dismissal was filed and entered on September 16 2016. As such, the motion is taken off calendar as moot. Moving party to give notice.

Case Number: 16K06615    Hearing Date: January 25, 2017    Dept: 77

The hearing on disbursement of funds is currently set for April 26, 2017 at 8:30 am. No hearing on disbursement is set for January 25, 2017. The court reiterates that each claimant must file a written claim prior to the April 26, 2017 hearing, and all claimants must personally appear at the April 26, 2017 disbursement hearing. If no appearances are made, the matter will be set for an OSC re: Escheating Funds. CCP § 128 and Government Code § 68084.1.

Clerk to give notice.

Case Number: 16K06833    Hearing Date: January 25, 2017    Dept: 77

Plaintiff Kenny Chung’s Motion to Compel Responses to Form Interrogatories, Set One; Request for Sanctions is GRANTED. CCP § 2030.290. Defendant Byung H. Do is ordered to serve verified responses to Plaintiff’s Form Interrogatories, without objections, within 30 days.

The Court finds Defendant Byung H. Do’s failure to respond a misuse of the discovery process. CCP § 2023.010(d). Sanctions have been sufficiently noticed. However, the amount of sanctions sought is high. As such, sanctions are awarded in the amount of $810.00, representing 2 hours for drafting the motion and for appearance at the hearing, at $375.00 per hour, plus one $60.00 filing fee. Defendant Byung H. Do is ordered to pay sanctions to Plaintiff and his attorney in the amount of $810.00 within 30 days. CCP § 2023.030.

Moving party to give notice.

Case Number: 16K08002    Hearing Date: January 23, 2017    Dept: 77

The Motion to Quash Service of Summons brought by defendants SM.KAN INC., ZIOZIA, INC., JSP NIKO, INC., HOONOH HOLDINGS, INC., JPL INTERNATIONAL, INC., HND WIDE CORP. and M & SONG, INC., and joined by Defendant Hyun Joo Lee, is GRANTED.

Legal Standard

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)

Analysis

Defendants SM.KAN INC. (erroneously sued as 101 Sushi Roll, Inc.), HOONOH HOLDINGS, INC. (erroneously sued as Sake-2-Me Inc.), JSP NIKO, INC. (erroneously sued as Niko Niko, Inc.), ZIOZIA, INC. (erroneously sued as Hoshi Sushi, Inc.), JPL INTERNATIONAL, INC. (erroneously sued as Miyako, Inc.), HND WIDE CORP. (erroneously sued as Yoko Yoko, Inc.) and M & SONG, INC. (erroneously sued as Trufish, Inc.) contend that they have not been served with the summons and Complaint in any manner that complies with the statutory procedures for service, and therefore, the court lacks personal jurisdiction over them. Defendant Hyun Joo Lee, who was added to the action via doe amendment on August 11, 2016, joins the motion. Plaintiff has not filed any proofs of service of the Summons and Complaint.

Defendants SM.KAN INC., HOONOH HOLDINGS, INC., ZIOZIA, INC., JPL INTERNATIONAL, INC., HND WIDE CORP. and M & SONG, INC. submit declarations from their executive officers attesting that they are the corporate agent for service of process, but only received a copy of the summons and Complaint in the mail. (Motion, Song Decl., ¶¶3-11 and Exh. A; Park Decl., ¶¶3-10 and Exh. B; Pyun Decl., ¶¶3-10 and Exh. C; Ahn Decl., ¶¶3-10; Oh Decl., ¶¶2-10 and Exh. D; Jeon Decl., ¶¶3-10 and Exh. E; Lee Decl., ¶¶3-10 and Exh. F.) They further attest that they were never served personally, by substitute service, or by notice and acknowledgement in the mail. (Ibid.)

Defendant Hyun Joo Lee is the executive officer of Defendant JPL INTERNATIONAL, INC. (Joinder, Lee Decl., ¶1.) She was added individually as a defendant to this action via doe amendment. She was not served personally, by substitute service, or by notice and acknowledgement in the mail. (Joinder, Lee Decl., ¶¶9-11.)

Defendant JSP NIKO, INC. submits a declaration from its executive officer, Jong I. Park, stating that he was informed by an employee that an envelope was left at the business premises, and he discovered that it contained the summons and Complaint. (Id. at Park Decl., ¶¶2-10 and Exh. B.) Park, who is also the corporate agent for service of process, was never served personally, by substitute service, or by notice and acknowledgement in the mail. (Ibid.)

Personal service requires that the Summons and Complaint be handed to the party to be served. (CCP § 415.10.) Substitute service requires that the summons and complaint be left with a person apparently in charge of the business, who was informed of the contents. (CCP § 415.20(a).) Service by mail requires “two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (CCP § 415.30.) According to the above declarations, none of the Defendants were personally handed the summons and Complaint, nor were the papers left at their business location with a person apparently in charge, nor were they mailed with notice and acknowledgement. These defendants have raised sufficient questions as to service, and the burden is on Plaintiff to demonstrate that these defendants were served in accordance with statutory requirements. As the motion is unopposed, however, Plaintiff has not met her burden.

Conclusion

The motion to quash service of summons is GRANTED as to Defendants SM.KAN INC., ZIOZIA, INC., JSP NIKO, INC., HOONOH HOLDINGS, INC., JPL INTERNATIONAL, INC., HND WIDE CORP., M & SONG, INC. and HYUN JOO LEE.

Moving parties to give notice.

Case Number: 16K08918    Hearing Date: January 23, 2017    Dept: 77

No dispositive tentative ruling is issued at this time on Petitioner NMS Capital Asset Management, Inc.’s Petition to Confirm Arbitration Award. The court does not have the Notice of Hearing. While the Proof of Service filed on August 10, 2016 shows that Petitioner served a Notice of Hearing, Petitioner did not file that Notice with the court. At this time, the court is inclined to continue this hearing date. However, if the Notice of Hearing is provided prior to or at the time of the January 23, 2017 hearing, the court would consider the Petition on the merits.

Case Number: 16K09791    Hearing Date: January 24, 2017    Dept: 77

Due to Judge Yolanda Orozco’s unavailability, Petitioner John Barrett’s Petition to Vacate Arbitration Award is CONTINUED to March 2, 2017. CCP § 128. Clerk to give notice.

Case Number: 16K10762    Hearing Date: January 31, 2017    Dept: 77

Defendant Select Portfolio Servicing, Inc.’s Demurrer to Plaintiff’s Complaint is TAKEN OFF CALENDAR. CCP §§ 128 and 403.040.

The complaint in this action contains a cause of action for quiet title and cannot be considered a limited jurisdiction case (even though the parties agree that the amount in controversy is under $25,000). See CCP § 86(b)(1). Accordingly, this case is reclassified as an unlimited civil matter and will be given a new case number and be reassigned to a different judge. Defendant to contact the new department to which the case has been assigned to set a new hearing date for the demurrer, with no additional filing fee required.

Moving party to give notice.

Case Number: 16K11058    Hearing Date: January 24, 2017    Dept: 77

No dispositive tentative ruling is issued at this time. The parties are ordered to appear at the hearing.

Case Number: 16K12108    Hearing Date: January 24, 2017    Dept: 77

Plaintiff Miracle Mile Properties, L.P.’s Motion to Advance Trial Date is GRANTED. CCP § 36(e) and CRC § 3.1335.

CCP § 36 provides broad discretionary power to grant a preference in any civil case. “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is support by a showing that satisfied the court that the interests of justice will be served by granting this preference.” CCP § 36(e). Per subsection (b) “The request may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or application.”

Plaintiff has made a sufficient showing that the trial date should be advanced. Specifically, Plaintiff has met the requirements of CCP § 36(e) and CRC 3.1335(b). Good cause exists to grant this motion as this is the type of case that CCP § 36 was designed to benefit. Therefore, this motion is granted. CCP § 36(e) and CRC 3.1335.

The trial date is preferentially set for June 16, 2017 at 8:30 am in Department 77. CCP § 36(f).

Finally, the court notes that there is no answer on file. The Proof of Service was filed on November 30, 2016. As such, it is unclear why Plaintiff has not proceeded to obtain Defendant’s default. CRC 3.110(g). Plaintiff should be prepared to address its failure to obtain Defendant’s default at the January 24, 2017 hearing.

Moving party to give notice within 10 days of this order.

Case Number: 16K12524    Hearing Date: January 24, 2017    Dept: 77

Petitioners Judy My Le and Judy My Dam’s Petition for Release of Property from Mechanic’s Lien is CONTINUED to February 8, 2017. CCP § 128. There is no Proof of Service in the file and/or attached to the Notice that shows proper service of the Notice of Hearing as required by CC § 8486. The court notes that a Proof of Service was filed on December 29, 2016, but is currently missing. As such, this matter is continued. However, the Court notes that if the moving party appears at the January 24, 2017 hearing with a Proof of Service showing proper service of the Notice of Hearing and Petition, the court would be inclined to consider the Petition on the merits.

Case Number: 30-2015-00770553    Hearing Date: January 24, 2017    Dept: 91

Plaintiff’s Continued Motion for Relief from Order of Dismissal of Plaintiff’s Action, filed on 12/15/16, is GRANTED. The court finds good cause to vacate the dismissal entered in this action on 9/20/16 based on surprise. Cal. Code Civ. Proc. § 473; Declaration of Randolph Gille. The court sets the following dates:

FSC: October 6, 2017 @ 10:00 a.m.
Trial: October 17, 2017 @ 8:30 a.m.

Moving party is ordered to give notice.

Case Number: BC32321    Hearing Date: January 27, 2017    Dept: 46

Case Number: BC384760
DR GARY K MICHELSON ET AL VS PROSKAUER ROSE LLP
Filing Date: 02/01/2008
Case Type: Other Compl-not Tort or Complex (General Jurisdiction)
Status: Summary Judgment per 437c CCP 10/09/2013
1/27/2017
Case Management Conference
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
1. Matter is set for Jury Trial
The matter is ready for trial setting. Both parties have deposited jury fees. The court has received the parties’ joint CMC statement and sets the matter for trial.
2. Discovery is Remains Open to Cut Off Dates Set by New Date of Trial


Regarding the parties “scope of discovery” argument, the law clearly indicates that upon reversal of a judgment, discovery is reopened and the “cut off” dates are thereafter measured from the date set for “retrial.” Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245; Beverly Hospital v Superior Court (Castaneda) (1993) 19 Cal. App. 4th 1289; Hirano v. Hirano (2007) 158 Cal.App.4th 1.
3. Parties to Re-Notice Motions In Accordance with Dates on the CRS System
The court notes that there are several motions that were taken off calendar due to the ruling on the MSJ – it appears that some motions will not be renewed and others will require new briefing. Resetting the motions is problematic due to missing court file and the fact that the discovery issues are apparently all influenced by the ruling by the Court of Appeal. The parties are ordered to refile the motions rather than renew them. Obtain and reserve calendar dates from the CRS (courtroom reservation system) for the motions. The court cannot set more than one matter for hearing on a particular date unless CRS has the timeslot available.
CASE MANAGEMENT ORDER
The following trial and pretrial dates are set and Case Management Orders are made in this matter:
Note 1 Select Mediator 8/4/2017
Note 1 Complete Mediation 12/21/2017
Note 1 Post-Mediation Hearing / Further Case Management Conference per CRC 3.723 12/22/2017 8:30 a.m.
Notes 2 & 7 Trial and Delivery of Evidence Books, Deposition Transcripts 3/7/2018 9:30 a.m.
Note 3 Discovery Deadline including hearing on motions related to discovery 2/5/2018
Note 4 In Person Meet and Confer Deadline Re Trial Documents 1/23/2018
Note 5 File, lodge in Dept 46, and serve TRIAL DOCUMENTS 2/16/2018
Note 6 Final Status Conference, ruling on MIL, determination of compliance with the CMO, and Presentation of “trial readiness binder(s)” 2/20/2018 8:30 a.m.
Jury Trial 3/07/2018 9:30 a.m.

Note 1: Mediation. The parties apparently agree in their CMC statements to attempt mediation of the case. If the parties are willing to attempt further mediation, then the parties are ordered to select a mutually agreeable mediator by 8/04/2017, complete mediation by 12/21/2017 and then return to Dept. 46 for post-mediation conference on 12/22/2017 at 8:30 a.m. in Dept. 46. The parties must return to Dept. 46 for Further Case Management Conference on 12/22/2017 at 8:30 a.m. in Dept. 46 even if mediation process is not started or, if started, remains incomplete.
Note 2: Trial Date. Jury Trial is set for 3/07/2018 at 9:30 a.m. in Dept. 46.
Note 3: Discovery/Motion Cut-Off. Subject to CCP §2024.010 (motions) and CCP §2034.010 (expert depositions and motions relating thereto) or other statutory exceptions, deadline for completion of all written discovery, depositions, and motion practice shall be 2/5/2018.
Note 4: IN PERSON MEET AND CONFER – LR 3.25(g)(2). Counsel for the parties are ordered to meet and confer in person (face-to face) not later than 1/23/2018 to discuss, plan, determine the timing of receipt of necessary information for preparation of the trial documents including written opposition positions as to any matters which are the subject of motions in limine, and agree as to preparation and delivery of essential trial documents to the court in a timely manner as to the following. These documents must be filed, lodged in Dept. 46, and served on the opposing party such that actual delivery on the other party and on the court by five court days prior to the final status conference. Hearing on motions in limine and review of compliance with this order shall be at the Final Status Conference date.
(1) Motions in Limine. Identify, and if possible, come to agreement regarding evidentiary issues that may be addressed in a motion in limine by each side and filing of papers not later than the deadline for filing and lodging motions in limine. The parties are to comply with L.R. 3.57 regarding Motions in Limine. The court will not entertain boilerplate motions in limine such as “evidence not disclosed in discovery” or “opinions not disclosed by expert deposition” unless the motion in limine is addressed to a very specific opinion, exhibit, or factual issue.
(a) Stipulation in lieu of motion. A potential solution to an evidentiary admissibility dispute is to stipulate that the parties will not mention to the jury a particular opinion, exhibit, or factual issue or matter until foundation is laid at trial and an objection raised at trial is overruled. Any stipulation shall be stated in an abbreviated writing served, lodged in Dept. 46, and filed with the court in advance of the FSC with the other trial documents as stated in Note 4.
(b) Joint Statement Regarding Motions in Limine for represented parties. If agreement cannot be reached, and all parties interested in the motion are represented by counsel, the moving party shall be responsible to file a JOINT STATEMENT regarding the motion in limine and the opposing party shall be responsible to state his/her/its position in writing in a timely manner to permit the filing of the joint document. The moving party should lodge directly in Dept. 46 and, separately, file a JOINT statement that addresses the evidence sought to be excluded or limited and the position of the moving party, the counter position of the opposing party, and any reply.
(c) Motion in Limine Form and Timing for Uncooperative Parties or Self-Represented Parties. Motions in limine by or against uncooperative or self-represented parties must be filed and served in accordance with L.R. 3.25(f)(2) - with notice as required by CCP §1005 and CCP §1013 - with the hearing date of the Final Status Conference.
(2) Witness List. Identify all non-impeachment and non-rebuttal witnesses in a JOINT witness list which shall include the names of all witnesses who may be called at trial, by whom to be called, and the estimated time for direct and cross-examination. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court in advance of the FSC with the other trial documents as stated in Note 4.
(3) Exhibit List. Identity of exhibits to be listed on a JOINT EXHIBIT LIST. Any numbering system the parties mutually agree upon is acceptable to the court, but designations may not be duplicated. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. The parties shall file the JOINT EXHIBIT LIST in the format of a table with a row for each exhibit and with columns for the number, description, who is offering the exhibit, whether the parties stipulate to authenticity, whether the parties stipulation to admission, whether the parties object to admission and why, when identified and when admitted. An example of the format is the LASC form, LACIV 216, which may be used in lieu of a specially prepared table.
(4) Actual Trial Exhibits in JOINT TRIAL Binder(s). The method and timeline for actual exchange of all anticipated trial exhibits except for those for solely impeachment or rebuttal writings. The parties shall work together to place all exhibits, where possible, into three-ringed binders with the actual exhibits marked with the appropriate numbers which were assigned to each exhibit on the JOINT EXHIBIT LIST. A multipage exhibit should have each page sub-numbered for reference during testimony. Any writing or exhibit not listed on the joint exhibit list and actually produced in full, complete, and final form to all parties by five court days prior to the FSC will be excluded at trial. In order to prove compliance with this order in the event of any disputes regarding compliance with the actual disclosure of exhibits requirements, the original exhibit book must be brought to the Final Status Conference and the parties shall each separately assure that all parties have reviewed or had the opportunity to review the JOINT EXHIBIT BOOK before the matter is called for FSC.
(5) Jury Instructions. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE READ TO THE JURY of any CACI, BAJI, or Special Jury Instructions are to be filed with the court in compliance with CRC 2.1055. The parties are to make all the fill-ins required by the jury instructions. Jury instructions shall be filed in three groups: Full and complete Joint Instructions for which there is no dispute (undisputed); Full and complete Instructions proposed by Plaintiff and disputed by other parties; Full and complete instructions proposed by Defendants and disputed by Plaintiff or other parties. The ACTUAL TEXT OF JURY INSTRUCTIONS shall be served, lodged in Dept. 46, and filed in advance of the FSC with the other trial documents as stated in Note 4.
(6) Special Verdict Forms with Interrogatories. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE SUBMITTED TO THE JURY OF ANY agreed SPECIAL VERDICT FORM(s) WITH INTERROGATORIES. The SPECIAL VERDICT FORM(s) WITH INTERROGATORIES shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. If the parties cannot agree on a verdict form, the parties must submit their own full and complete jury ready special verdict form. The ACTUAL TEXT in JURY READY form shall be served, lodged in Dept. 46, and filed with the court in advance of the FSC with the other trial documents as stated in Note 4.
(7) Joint Statement of Case. For jury trials, the text of a jointly worded statement of the case for the jury to be read to the jury as an introduction to the case prior to jury selection. The JOINT STATEMENT OF CASE shall be served, lodged in Dept. 46, and filed with the court in advance of the FSC with the other trial documents as stated in Note 4.
Note 5: Timing for Trial Documents. ALL TRIAL DOCUMENTS MUST BE ACTUALLY RECEIVED (lodged) IN DEPT. 46 NOT LATER THAN 2/16/2018. Trial documents are those listed as items 1 – 7 under Note 4. These documents must be served, lodged in Dept. 46, and separately filed with the court not later than five court days in advance of the Final Status Conference. In the event there are uncooperative parties who will not meet and confer or comply with the joint document preparation requirements or for self-represented parties, Motions in Limine are to be served by mail with notice compliant with CCP §§1005 and 1013 and the parties may unilaterally comply by filing separate trial documents. However, the court will impose monetary and/or evidentiary sanctions for a represented party’s failure to comply in good faith.
Note 6: Final Status Conference. Final Status Conference is set for 2/20/2018 at 8:30 a.m. in Dept. 46. At the final status conference the court will determine trial readiness and will receive or review any disputed trial readiness binder(s) and review the trial documents and determine compliance with the Case Management Order including: (1) Review of Joint Witness List; (2) Review of Joint Exhibit List; (3) Determine Exchange of Actual Trial Exhibits excluding rebuttal or impeachment exhibits and order that documents not exchanged are excluded; (4) For jury trials, determine readiness of Jury Instructions and Special Verdict Forms for submission to the jury and review areas of dispute; (5) Rule on Motions in Limine; (6) Completion of Trial Books. If the parties have not complied, further FSC dates may be set and/or monetary and/or evidentiary sanctions for a failure to comply may be issued.
Note 7: Day of Trial documents. The original deposition transcripts and the original and five (5) copies of the “Evidence Binders” are to be delivered to the court on the date of trial. The parties should have had the original of these binders ready for inspection by the court on the date of the FSC and should have made the necessary copies in the period between the FSC and trial.
Sanctions. Failure to comply with a material provision of this order may subject a party (represented or self-represented) or an attorney to sanctions, including striking pleadings, or precluding the introduction of evidence or contesting issues at trial.

IT IS SO ORDERED:

______________________
Frederick C. Shaller, Judge

Case Number: BC384760    Hearing Date: January 27, 2017    Dept: 46

Case Number: BC384760
DR GARY K MICHELSON ET AL VS PROSKAUER ROSE LLP
Filing Date: 02/01/2008
Case Type: Other Compl-not Tort or Complex (General Jurisdiction)
Status: Summary Judgment per 437c CCP 10/09/2013
1/27/2017
Case Management Conference
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
The matter is ready for trial setting. Both parties have deposited jury fees.
CASE MANAGEMENT ORDER
The following trial and pretrial dates are set and Case Management Orders are made in this matter.
Note 1 Select Mediator 1/6/2017
Note 1 Complete Mediation 5/18/2017
Note 1 Post-Mediation Hearing / Further Case Management Conference per CRC 3.723 5/19/2017 8:30 a.m.
Notes 2 & 7 Jury Trial and Delivery of Evidence Books, Deposition Transcripts 8/16/2017 9:30 a.m.
Note 3 Discovery Deadline including hearing on motions related to discovery 7/17/2017
Note 4 In Person Meet and Confer Deadline Re Trial Documents 7/2/2017
Note 5 File, lodge courtesy copy in Dept. 46, and serve TRIAL DOCUMENTS 7/28/2017
Note 6 Final Status Conference, ruling on MIL, determination of compliance with the CMO, and Presentation of “trial readiness binder(s)” 8/1/2017 8:30 a.m.
Jury Trial 8/16/2017 9:30 a.m.

Note 1: Mediation. Neither party filed a current Case Management Statement. Therefore the court conditionally orders that if the parties agree to participate in mediation, then the parties are ordered to select a mutually agreeable mediator by 1/30/2017, complete mediation by 5/18/2017 and then return to Dept. 46 for post-mediation conference on 5/19/2017 at 8:30 a.m. in Dept. 46. The parties must return to Dept. 46 for Further Case Management Conference on 5/19/2017 at 8:30 a.m. in Dept. 46 even if mediation process is not started or, if started, remains incomplete.
Note 2: Trial Date. Both parties deposited jury fees, Plaintiff on 7/16/2012 and Defendant on 10/2/2013. Jury Trial is set for 8/16/2017 at 9:30 a.m. in Dept. 46.
Note 3: Discovery/Motion Cut-Off. Subject to CCP §2024.010 (motions) and CCP §2034.010 (expert depositions and motions relating thereto) or other statutory exceptions, deadline for completion of all written discovery, depositions, and motion practice shall be extended to 7/17/2017.
Note 4: IN PERSON MEET AND CONFER – LR 3.25(g)(2). Counsel for the parties are ordered to meet and confer in person (face-to face) not later than 7/2/2017 to discuss, plan, determine the timing of receipt of necessary information for preparation of the trial documents including written opposition positions as to any matters which are the subject of motions in limine, and agree as to preparation and delivery of essential trial documents to the court in a timely manner as to the following. These documents must be filed, lodged in Dept. 46, and served on the opposing party such that actual delivery on the other party and on the court by five court days prior to the final status conference. Hearing on motions in limine and review of compliance with this order shall be at the Final Status Conference date.
(1) Motions in Limine. Identify, and if possible, come to agreement regarding evidentiary issues that may be addressed in a motion in limine by each side and filing of papers not later than the deadline for filing and lodging motions in limine. The parties are to comply with L.R. 3.57 regarding Motions in Limine. The court will not entertain boilerplate motions in limine such as “evidence not disclosed in discovery” or “opinions not disclosed by expert deposition” unless the motion in limine is addressed to a very specific opinion, exhibit, or factual issue.
(a) Stipulation in lieu of motion. A potential solution to an evidentiary admissibility dispute is to stipulate that the parties will not mention to the jury a particular opinion, exhibit, or factual issue or matter until foundation is laid at trial and an objection raised at trial is overruled. Any stipulation shall be stated in an abbreviated writing served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(b) Joint Statement Regarding Motions in Limine for represented parties. If agreement cannot be reached, and all parties interested in the motion are represented by counsel, the moving party shall be responsible to file a JOINT STATEMENT regarding the motion in limine and the opposing party shall be responsible to state his/her/its position in writing in a timely manner to permit the filing of the joint document. The moving party should lodge directly in Dept. 46 and, separately, file a JOINT statement that addresses the evidence sought to be excluded or limited and the position of the moving party, the counter position of the opposing party, and any reply.
(c) Motion in Limine Form and Timing for Uncooperative Parties or Self-Represented Parties. Motions in limine by or against uncooperative or self-represented parties must be filed and served in accordance with L.R. 3.25(f)(2) - with notice as required by CCP §1005 and CCP §1013 - with the hearing date of the Final Status Conference.
(2) Witness List. Identify all non-impeachment and non-rebuttal witnesses in a JOINT witness list which shall include the names of all witnesses who may be called at trial, by whom to be called, and the estimated time for direct and cross-examination. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(3) Exhibit List. Identity of exhibits to be listed on a JOINT EXHIBIT LIST. Any numbering system the parties mutually agree upon is acceptable to the court, but designations may not be duplicated. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. The parties shall file the JOINT EXHIBIT LIST in the format of a table with a row for each exhibit and with columns for the number, description, who is offering the exhibit, whether the parties stipulate to authenticity, whether the parties stipulation to admission, whether the parties object to admission and why, when identified and when admitted. An example of the format is the LASC form, LACIV 216, which may be used in lieu of a specially prepared table.
(4) Actual Trial Exhibits in JOINT TRIAL Binder(s). The method and timeline for actual exchange of all anticipated trial exhibits except for those for solely impeachment or rebuttal writings. The parties shall work together to place all exhibits, where possible, into three-ringed binders with the actual exhibits marked with the appropriate numbers which were assigned to each exhibit on the JOINT EXHIBIT LIST. A multipage exhibit should have each page sub-numbered for reference during testimony. Any writing or exhibit not listed on the joint exhibit list and actually produced in full, complete, and final form to all parties by five court days prior to the FSC will be excluded at trial. In order to prove compliance with this order in the event of any disputes regarding compliance with the actual disclosure of exhibits requirements, the original exhibit book must be brought to the Final Status Conference and the parties shall each separately assure that all parties have reviewed or had the opportunity to review the JOINT EXHIBIT BOOK before the matter is called for FSC.
(5) Jury Instructions. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE READ TO THE JURY of any CACI, BAJI, or Special Jury Instructions are to be filed with the court in compliance with CRC 2.1055. The parties are to make all the fill-ins required by the jury instructions. Jury instructions shall be filed in three groups: Full and complete Joint Instructions for which there is no dispute (undisputed); Full and complete Instructions proposed by Plaintiff and disputed by other parties; Full and complete instructions proposed by Defendants and disputed by Plaintiff or other parties. The ACTUAL TEXT OF JURY INSTRUCTIONS shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(6) Special Verdict Forms with Interrogatories. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE SUBMITTED TO THE JURY OF ANY agreed SPECIAL VERDICT FORM(s) WITH INTERROGATORIES. The SPECIAL VERDICT FORM(s) WITH INTERROGATORIES shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. If the parties cannot agree on a verdict form, the parties must submit their own full and complete jury ready special verdict form. The ACTUAL TEXT in JURY READY form shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(7) Joint Statement of Case. For jury trials, the text of a jointly worded statement of the case for the jury to be read to the jury as an introduction to the case prior to jury selection. The JOINT STATEMENT OF CASE shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
Note 5: Timing for Trial Documents. ALL TRIAL DOCUMENTS (Except Motions in Limine which should have already been served) MUST BE ACTUALLY RECEIVED IN DEPT. 46 NOT LATER THAN 7/28/2017. Trial documents are those listed as items 1 – 7 under Note 4. These documents must be served, lodged in Dept. 46, and separately filed with the court not later than five court days in advance of the Final Status Conference. In the event there are uncooperative parties who will not meet and confer or comply with the joint document preparation requirements or for self-represented parties, Motions in Limine are to be served by mail with notice compliant with CCP §§1005 and 1013 and the parties may unilaterally comply by filing separate trial documents. However, the court will impose monetary and/or evidentiary sanctions for a represented party’s failure to comply in good faith.
Note 6: Final Status Conference. Final Status Conference is set for 8/1/2017 at 8:30 a.m. in Dept. 46. At the final status conference the court will determine trial readiness and will receive or review any disputed trial readiness binder(s) and review the trial documents and determine compliance with the Case Management Order including: (1) Review of Joint Witness List; (2) Review of Joint Exhibit List; (3) Determine Exchange of Actual Trial Exhibits excluding rebuttal or impeachment exhibits and order that documents not exchanged are excluded; (4) For jury trials, determine readiness of Jury Instructions and Special Verdict Forms for submission to the jury and review areas of dispute; (5) Rule on Motions in Limine; (6) Completion of Trial Books. If the parties have not complied, further FSC dates may be set and/or monetary and/or evidentiary sanctions for a failure to comply may be issued.
Note 7: Day of Trial documents. The original deposition transcripts and the original and five (5) copies of the “Evidence Binders” are to be delivered to the court on the date of trial. The parties should have had the original of these binders ready for inspection by the court on the date of the FSC and should have made the necessary copies in the period between the FSC and trial.
Sanctions. Failure to comply with a material provision of this order may subject a party (represented or self-represented) or an attorney to sanctions, including striking pleadings, or precluding the introduction of evidence or contesting issues at trial. Failure to comply with time deadlines may result in continuance of trial.

IT IS SO ORDERED:

______________________
Frederick C. Shaller, Judge

Case Number: BC430705    Hearing Date: January 23, 2017    Dept: 32

A.D. FIRENZE-1, LLC,
Plaintiff,
v.

MOIZ SAIYED, et al.
Defendants.
Case No.: BC430705

Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
MOTION TO REINSTATE THE STAY OF CIVIL ACTION


BACKGROUND
This action arises out of the purchase of a commercial lease by A.D. Firenze-1, LLC (“Plaintiff”). The lease was purchased from Moiz Saiyed, and both Plaintiff and Saiyed were represented by the real estate agents Tim Hyde and Jeremy Brown. Saiyed’s wife, Saima Pasha, was also involved in the transaction. Plaintiff alleges that the value of the property was misrepresented prior to its sale.
On February 23, 2012, Moiz Saiyed and Saima Pasha (“Moving Defendants”) moved to compel arbitration with Plaintiff. The Court granted this motion on April 20, 2012, and stayed the proceeding until arbitration concluded. On July 13, 2016, the following minute order was issued: “Counsel inform the Court that the arbitration proceedings are still pending as to defendants Moiz Saiyed and Saima Saiyed. The stay remains as to Moiz and Saima Saiyed due to arbitration proceedings. The Court lifts the stay as to all other defendants and sets the following dates . . . .”
Since the stay has been lifted, Defendants Hyde and Brown have entered a settlement agreement with Plaintiff, which is also before the Court today. Additionally, Defendant Coldwell Banker, Hyde, and Brown (“Opposing Defendants”) have all filed motions for summary judgment, which are currently pending before the Court. Finally, if the matter is not resolved either through settlement or motions for summary judgment, the trial is scheduled for February 28, 2017.
Moving Defendants now move ex parte to reinstate the stay as to the Opposing Defendants.
DISCUSSION
The Opposing Defendants have been free to proceed with the litigation since July, and are nearing resolution of all issues pertaining to them. Moving Defendants argue that they are being forced “to litigate on two fronts on the same issues” (Shafie Decl. ¶ 5), because they are simultaneously proceeding with arbitration against the Plaintiff, and participating in litigation against Opposing Defendants in the instant suit. Although the stay is still in effect as to Moving Defendants, they argue that they have had to remain involved, because resolution of the case as to Opposing Defendants may impact their own arbitration.
Plaintiff and the Opposing Defendants all oppose the ex parte motion. All argue that the motion is untimely, as Moving Defendants could have brought a noticed motion, rather than an ex parte application, at any time in the last six months, since the stay was lifted. They argue Moving Defendants are only bringing the ex parte motion now because resolution of the case, through settlement, motions for summary judgment, or trial, appears imminent. Additionally, Plaintiff argues that the only reason arbitration has not been completed is because Moving Defendants have delayed the proceedings for four-and-a-half years. The Opposing Defendants similarly, though without specifying whether they blame Plaintiff or Moving Defendants, argue that arbitration has dragged on without resolution for four-and-a-half years, and that this has been unfair to them, as they have been unable to obtain relief because of the delay.
The Court agrees that the stay should not be reinstated as to the other Defendants. Whether the fault lies with Plaintiff or the Moving Defendants, Defendants Hyde, Brown, and Coldwell Banker should not be held responsible for the lengthy arbitral delay.
It is true that a civil action should be stayed where there is a threat of inconsistent results or rendering arbitration ineffective. Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 693. However, statutory language is explicit in providing that where only part of the controversy need be arbitrated, “the stay may be with respect to that issue only.” (Code Civ. Proc. § 1281.4.)
While there is some overlap, the Court is not convinced that the situations of Moving Defendants and Opposing Defendants is sufficiently related to risk inconsistent results. Some causes of action in the complaint apply only to Moving Defendants, while some causes of action apply only to Opposing Defendants. As to these causes of action, there can be no concern of inconsistent results. The concern is most acute on the fraud and negligent misrepresentation claims, however, which are alleged against all defendants. Even here, however, the Court is not convinced there is a threat of inconsistent results, such that arbitration would become ineffective or that the stay could not be issued as to only that part of the action. There is one shared, underlying issue that could theoretically affect all of the defendants, namely the truthfulness of the information presented to Plaintiff prior to signing of the contract. On all other issues, however—such as whether the allegedly untrue information actually amounted to a misrepresentation, whether it was expressed knowingly or in ignorance of its truthfulness, whether any party intended to defraud Plaintiff, whether Plaintiff relied reasonably on those misrepresentations, and whether Plaintiff was damaged by that reliance—the determination will turn on facts specific to the acts of Moving Defendants and the acts of the Opposing Defendants. As such, the extent to which the outcomes at trial and the outcomes at arbitration are inconsistent will be because the Court and the arbitrator are resolving different acts that involve different parties, and not because the same issues are being resolved in two contradictory ways.
Moreover, the argument about timeliness is well-taken. Clearly, when the Court removed the stay as to the Opposing Defendants in July, the intent would be to allow them an opportunity to try and resolve the claims against them. Moving Defendants had six months to object to this and properly notice a motion whereby they could fully brief the Court as to why resolution of those other claims infringed their arbitration rights. They have not done so.
For the foregoing reasons, the Court DENIES the request to reinstate the stay of civil action.


A.D. FIRENZE-1, LLC,
Plaintiff,
v.

MOIZ SAIYED, et al.
Defendants.
Case No.: BC430705

Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
MOTION TO CONTEST APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION BETWEEN PLAINTIFF AND DEFENDANTS TIM HYDE AND JEREMY BROWN



BACKGROUND
This action arises out of the purchase of a commercial lease by A.D. Firenze-1, LLC (“Plaintiff”). The lease was purchased from Moiz Saiyed, and both Plaintiff and Saiyed were represented by the real estate agents Tim Hyde and Jeremy Brown. Saiyed’s wife, Saima Pasha, was also involved in the transaction. Plaintiff alleges that the value of the property was misrepresented prior to its sale. Plaintiff’s second amended complaint states nine causes of action against these and other parties. As against Tim Hyde and Jeremy Brown, Plaintiff brought causes of action for (2) Fraud; (3) Negligent Misrepresentation; (5) Breach of Fiduciary Duty; and (6) Civil Conspiracy. As against Moiz Saiyed, Plaintiff brought causes of action for (1) Breach of Written Contract; (2) Fraud; (3) Negligent Misrepresentation; (6) Civil Conspiracy; and (8) Breach of Contract/Lease. As against Saima Pasha, Plaintiff brought causes of action for (2) Fraud; (3) Negligent Misrepresentation; (6) Civil Conspiracy; and (8) Breach of Contract/Lease.
Tim Hyde and Jeremy Brown (“Settling Defendants”) filed an Application for Good Faith Settlement Determination on December 06, 2016. Defendants Moiz Saiyed and Saima Pasha (“Contesting Defendants”) filed a Motion to Contest the Good Faith Settlement on December 30, 2016.
DISCUSSION
Code Civ. Proc. § 877.6 provides in relevant part: “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005…” (CCP § 877.6(a)(1).) A settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. (CCP § 877.6(a)(2).) The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. (Id.)
The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (CCP § 877.6(b).) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (CCP § 877.6(c).)
The landmark California Supreme Court decision Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. established the parameters of the inquiry into whether a settlement is in good faith. ((1985) 38 Cal.3d 488.) Under Tech-Bilt, the factors the court must consider in determining whether the settlement is in good faith are as follows:
1. A rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability;
2. The amount paid in settlement;
3. The allocation of settlement proceeds among the plaintiffs in multi-plaintiff cases;
4. A recognition that a settlor should pay less in settlement than he or she would if found liable after a trial;
5. The financial condition and insurance policy limits of settlor; and
6. The existence of any collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.
A defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be. When testing the good faith of a settlement figure, a court may enlist the guidance of the judge's personal experience and of experts in the field. The danger that a low settlement violates the good faith clause will not impart uncertainty so long as the parties behave fairly and the courts maintain a realistic awareness of settlement imponderables. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 498-501, citations and quotations omitted.)
The party asserting the lack of good faith has the burden of proof on that issue (Code Civ. Proc., § 877.6(d)) and should demonstrate, if he can, that the settlement is so far “out of the ballpark” in relation to the above as to be inconsistent with the equitable objectives of the statute.

A. Procedural Arguments
Contesting Defendants first argue that Settling Defendants application should be rejected, because no affidavits were attached addressing the whether the settlement was reached in good faith. They cite CCP § 877.6(b) to support their argument.
Contesting Defendants are incorrect for two reasons. First, the issue of good faith settlements come before the court in one of two ways; either the parties opposed to the settlement request a hearing on the matter (CCP § 877.6(a)(1)) or the parties entering the settlement simply give notice to all parties and the court of the settlement, and provide to all parties and the court “the basis, terms, and amount of the settlement” (CCP § 877.6(a)(2)). A plain reading of CCP § 877.6(b), which requires the court to determine whether a settlement has been in good faith “on the basis of affidavits,” only requires affidavits when a party seeks a hearing to oppose the settlement agreement. Here, the initial application was satisfactorily submitted under CCP § 877.6(a)(2), and no affidavits were necessary. Once Contesting Defendants moved under CCP § 877.6(a)(1) for a hearing on the matter, Settling Defendants appropriately provided affidavits in their response to that motion, and these affidavits formed the basis of the Court’s decision.
Second, the Court notes that in Contesting Defendants’ motion, they frequently request additional evidence or note the need to conduct certain calculations in order for the Court to determine whether the settlement was made in good faith. (See, e.g., Motion at 6:21-27 [“The settling defendant’s proportionate liability is a critical factor . . . [t]his evaluation has not been done here and needs to be addressed here.”]; 7:1-7 [“The court must consider not only the settling parties’ potential liability to plaintiff but also its proportionate share of culpability as amongst all parties alleged to be liable for the same injury. . . . Similarly, the proportion of fallout between the sellers of the property as well as the brokers must be calculated in order to be a fair and reasonable settlement.”]; 7:8-14 [“Substantial evidence showing the nature and extent of the settling defendant’s liability is required. . . . No evidence of any kind has been put forth to support the purported good faith settlement or the proportionality of liability between the settling and non-settling parties.”].)
It is not clear why Contesting Defendants raise these issues without themselves resolving them, for example by presenting to the Court their estimates regarding Settling Defendants proportionate liability. It appears from the general tenor of the motion, however, that Contesting Defendants have misunderstood the burden of proof in these circumstances. The motion consists almost entirely of Contesting Defendants accusing Settling Defendants of failing to provide necessary evidence of good faith, yet it is Contesting Defendants who must provide evidence to show it was not made in good faith. (CCP § 877.6(d).). Beyond a general and vague statement that Plaintiff is seeking $1 million, and therefore that a $70,000 settlement must be too small, Contesting Defendants have generally failed to point to evidence that would allow them to carry their burden.
Notwithstanding the above, CCP § 877.6(b) explicitly permits the Court to consider evidence presented at the hearing, so to the extent Contesting Defendants do that, the Court may consider it.
B. Tech-Bilt Factors
1. Factors One, Two, and Four – Amount of Settlement
The Court will first address the first, second, and fourth factors from the Tech-Bilt case, by comparing an approximation of Plaintiff’s estimated recovery, based on the proportionate liability of Settling Defendants, with the actual amount paid in settlement, all while bearing in mind that the settlement amount should be lower than an award at trial.
Contesting Defendants argue that the amount of the settlement is too low based on Plaintiff’s claims, because it underestimates the total amount to which Plaintiff may be entitled. Settling Defendants have agreed to pay $70,000 to Plaintiff. Contesting Defendants argue this is insufficient, given that Plaintiff is seeking over $1,000,000 in damages.
Settling Defendants argue in opposition that Plaintiff’s second amended complaint never explicitly states that it is seeking damages in excess of $1,000,000. At a minimum, however, Plaintiff did argue in its Complaint that it overpaid for the property at issue by $1.3 million (SAC ¶ 66), so Contesting Defendants’ argument that Plaintiff is seeking at least one million dollars is not, as Settling Defendants suggest, entirely baseless.
That said, there are certain other considerations that Contesting Defendants do not address. For example, Contesting Defendants and Settling Defendants were all sued for fraud, negligent misrepresentation, and civil conspiracy, while only Settling Defendants were sued for breach of fiduciary duty, and only Contesting Defendants were sued for breaching two different contracts. As such, to point generally to the largest damages amount at issue in the Complaint is to ignore that damages would not necessarily be divided equally among the Defendants—indeed, significant damages under the two breach of contract causes of action would accrue solely to the Contesting Defendants. Second, on one of the most central causes of action, for fraud, it may be more difficult for Plaintiff to prove that Settling Defendants were culpable, than it may be to prove that Contesting Defendants were culpable, because the alleged misrepresentations at issue in this case originated with Contesting Defendants, and were merely passed on by Settling Defendants. Even assuming, in arguendo, that Settling Defendants are liable for passing this information on to Plaintiffs without verifying it, Settling Defendants would likely be in a strong position to argue that Contesting Defendants bear the bulk of the liability, for providing the inaccurate information to Settling Defendants in the first place. Finally, Contesting Defendants ignore that part of the settlement negotiations included an agreement by Settling Defendants to dismiss a cross-complaint they had filed against Plaintiff. As such, the degree to which Plaintiff weighed its own potential liability to Settling Defendants, in addition to Settling Defendants potential liability to Plaintiff, should have some bearing on the reasonableness of the settlement.
For all of the foregoing reasons, the Court concludes that the $70,000 settlement is reasonably proportional to the damages Plaintiff could expect to receive from Settling Defendants at trial.
2. Factor Three – Allocation of Settlement in Multi-Plaintiff Suits
There is only one Plaintiff in the instant suit, and so allocation among plaintiffs is not an issue.
3. Factor Five – Insurance
The fifth factor asks the Court to consider the financial condition and insurance policy limits of Settling Defendants. Contesting Defendants argue that “[t]he insurance coverage for both Hyde and Brown indicates that the $70,000.00 settlement is not fair – and not in the reasonable good faith ballpark. (Motion 6:3-4, emphasis in original.) However, the Court does not have before it any information regarding Settling Defendants’ insurance coverage. Instead, Settling Defendants both declare that they have no insurance coverage regarding this suit, and that the settlement is being paid out of their own pockets, not by any insurance company. (Hyde Decl. ¶ 2, Brown Decl. ¶ 2.)
Given these sworn statements, and the lack of any evidence to the contrary, the Court concludes that the size of any insurance policy Settling Defendants may have has no bearing on the reasonableness or good faith of the instant settlement.
4. Factor Six – Collusion Aimed at Injuring Contesting Defendants
Finally, Contesting Defendants argue that this settlement is in bad faith, because they believe Settling Defendants and Plaintiffs colluded to harm Contesting Defendants. As evidence for this, Contesting Defendants argue that Settling Defendants, for the first time in a seven-year suit, signed affidavits in support of a motion for summary judgment brought by a different defendant, Coldwell Banker, that placed the blame for any wrongdoing primarily on Contesting Defendants. Additionally, Contesting Defendants argue that the parties have been involved in ongoing mediation, and had “been led to believe . . . a global resolution of the matter with all parties participating in the settlement” was expected.
Contesting Defendants’ argument regarding Coldwell Banker’s motion for summary judgment is meritless. First, the fact that Settling Defendants would support another defendant—in this case, one with whom they are professionally affiliated—in seeking summary judgment does not imply that Settling Defendants are colluding with Plaintiff against Contesting Defendants. To further bolster their argument, Contesting Defendants noted “it w[i]ll be interesting to see if Plaintiff files a vigorous—or any—Opposition to [the motion for summary judgment].” (Motion 6:18-19.) They can rest assured that Plaintiff did, in fact, file a vigorous opposition to that motion for summary judgment the very day Contesting Defendants filed the instant motion. Most importantly, as Settling Defendants point out, their argument in support of the motion for summary judgment was the same as an argument they made five years ago, namely that Settling Defendants received all information at issue in the instant case from Contesting Defendants, and had no reason to doubt its veracity. This is not the same as Settling Defendants placing all blame on Contesting Defendants, which is how Contesting Defendants portray the affidavits. This also disputes Contesting Defendants’ argument that these statements by Settling Defendants shocked them or were substantively different from Settling Defendants’ position at other times in the case.
Contesting Defendants’ argument regarding mediation and a global settlement agreement are likewise unsupported. The declaration attached to Contesting Defendants’ motion makes no reference to mediation or a belief that a global settlement was being negotiated. The declarations attached to Settling Defendants’ opposition, by contrast, state that a single mediation hearing was held in May 2016, that Contesting Defendants did not attend the hearing, and that no settlement negotiations that included both Contesting Defendants and Settling Defendants have occurred since that time. (Brown Decl. ¶ 4; Hyde Decl. ¶ 4.)
Finally, as further evidence against collusion, Settling Defendants note that the agreement “was made at arm’s length through negotiations between counsel.” (Brown Decl. ¶ 3, Hyde Decl. ¶ 3.)
As such, Contesting Defendants have failed to show any evidence of collusion between the Plaintiff and the Settling Defendants aimed at injuring the Contesting Defendants.
5. Conclusion
For the foregoing reasons, the Court concludes that the settlement agreement between Plaintiff and Settling Defendants was reasonable, and entered into with good faith.
C. Cross-Complaint
Simultaneous with the filing of the instant motion, Contesting Defendants filed a motion for leave to file a Cross-Complaint against Settling Defendants. Under CCP § 877.6(c), a good faith settlement releases settling parties from liability not only as to plaintiff, but as to others with whom they are jointly liable. Contesting Defendants argue that “[Settling Defendants] will likely be subject to claims for liability for indemnity, contribution and breach of fiduciary duty,” and that “[s]ince the court’s confirmation of a good faith settlement would effectively bar [Contesting Defendants’] equitable indemnification claims, as well as those for contribution and breach of fiduciary duty against [Settling Defendants’], the propose[d] settlement cannot be determined as good faith.” (Motion 7:20-8:4.)
This is roundabout logic: Contesting Defendants essentially argue that since a good faith settlement would bar its claims, the settlement agreement cannot have been in good faith. First, the statute explicitly recognizes that one consequence of good faith settlements is that other claims for indemnification may be barred; as such, the fact that other claims will be barred cannot in itself demonstrate that the settlement was not in good faith. Second, the notice of good faith settlement was filed before Contesting Defendants filed a Cross-Complaint, so it cannot be said that the settlement agreement was explicitly entered into to prevent Contesting Defendants claims; no such claims existed at that time. Finally, this action was initially brought seven years ago; Contesting Defendants provide no justification for waiting seven years to bring the instant action, and cannot now suggest that they will be unduly harmed by a settlement agreement because they will be unable to prosecute their new cross complaint.
D. Conclusion
The motion to contest application for good faith settlement determination is DENIED.
The application for good faith settlement determination is GRANTED.


A.D. FIRENZE-1, LLC,
Plaintiff,
v.

MOIZ SAIYED, et al.
Defendants.
Case No.: BC430705

Hearing Date: January 13, 2017

[TENTATIVE] ORDER RE:
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION


BACKGROUND
This action arises out of the purchase of a commercial lease by Plaintiff A.D. Firenze, LLC (“Plaintiff”). The lease was purchased from Moiz Saiyed (“Saiyed”), and both Plaintiff and Saiyed were represented by the real estate agents Tim Hyde (“Hyde”) and Jeremy Brown (“Brown”). Plaintiff alleges that Saiyed, Hyde, and Brown misrepresented the value of the property prior to its sale. During the transaction, Hyde and Brown left the real estate firm DT Group, Inc. (“DT”) and affiliated with Coldwell Banker Residential Brokerage Company (“Defendant”). Plaintiff’s second amended complaint states nine causes of action against these and other parties. As against the moving Defendant, Coldwell Banker, Plaintiff brought causes of action for (2) Fraud; (3) Negligent Misrepresentation; (5) Breach of Fiduciary Duty; and (6) Civil Conspiracy.
Defendant now moves for summary judgment, or, in the alternative, summary adjudication, on Plaintiff’s second amended complaint.
REQUEST FOR JUDICIAL NOTICE
Defendant asks the Court to take judicial notice of an order this Court issued on July 08, 2010, sustaining a demurrer as to certain causes of action in Plaintiff’s initial complaint. Pursuant to Evid. Code § 452(d), which permits the Court to take judicial notice of the records of any court in this state, the Defendant’s request for judicial notice is granted.
EVIDENTIARY OBJECTIONS
In conjunction with their Reply, Defendant raises 35 evidentiary objections to the two declarations that accompanied Plaintiff’s opposition. Pursuant to CCP § 437c(q), “the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” As Defendant’s objections were to evidence immaterial to the disposition of the instant motion, the Court declines to rule on them.
DISCUSSION
A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) On its motion for summary judgment, the plaintiff maintains the burden that each of the elements has been proved and that there is no defense available, while on its motion the defendant must persuade the court that one of the elements in question cannot be established or that there is a complete defense. (Id.) Summary judgment motions are defined by the material allegations in the pleadings. (Baptist v. Robinson (2006) 143 Cal. App. 4th 151, 159.)
A. Second and Third Causes of Action – Fraud and Negligent Misrepresentation
The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. (See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 983; Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1285.) Negligent misrepresentation is narrower than fraud. While a person can be held liable for fraud for “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact,” (Civ. Code §1710), negligent misrepresentation requires a false statement of a past or existing material fact (Home Budget, supra, 207 Cal.App.3d at 1285).
The only misrepresentations at issue in the instant case are those made by Hyde and Brown; Plaintiff does not allege that anyone else affiliated with Defendant made any misrepresentations.
Defendant argues (1) that Hyde and Brown did not make any misrepresentation; (2) that if they did make a misrepresentation, they did not do so knowingly or unreasonably; and (3) that even if they did make a knowing misrepresentation, Defendant cannot be held vicariously liable for it, because such misrepresentations occurred prior to Hyde and Brown becoming affiliated with Defendant Coldwell Banker.
1. Misrepresentation
The misrepresentations cited by Plaintiff include false information about existing leases on the property, false information about property taxes, and false information about the operating costs and profits on the property, as presented in certain marketing documents Plaintiff viewed. (SAC ¶¶ 20-34.) Defendant argues that these cannot be considered misrepresentations, because the document from which Plaintiff received this information included, in small print at the bottom of the page, the following statement “This information has been secured from sources we believe to be reliable, but we make no representation or warranties, expressed or implied to the accuracy of the information.” (Brown Decl. ¶ 4, Exh. A.)
Plaintiff never directly responds to this contention; though the opposition makes occasional mention of the fraud and negligent misrepresentation causes of action, its substance is primarily directed at establishing the existence of fiduciary duties.
To some extent, of course, the argument over fiduciary duties overlaps with the argument over fraud and negligent misrepresentation. As Plaintiff points out, “a breach of fiduciary duty usually constitutes constructive fraud.” (Opposition 7:4-9 [citing Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562-63].) Plaintiff’s argument therefore appears to be that the misrepresentation was ongoing, insofar as Hyde and Brown allegedly had a fiduciary duty to investigate and correct these statements once they became agents of Plaintiff during the purchasing process. (Opposition 6:1, referring to the party’s “continuing fraud.”) In this sense, it is not the active misrepresentation of information contained in the marketing material at issue, but the nondisclosure of material facts later on that forms the basis of Plaintiff’s claim.
As discussed below, however, Plaintiff ultimately fails to establish that a fiduciary duty has been breached. Therefore, to the extent Plaintiff’s evidence of misrepresentation rests on the argument that the misrepresentation occurred later, after the parties entered a fiduciary relationship in which a duty to correct the information given to Plaintiff arose, Plaintiff has failed to carry its burden as to this prong of this cause of action. To the extent Plaintiff’s evidence of misrepresentation rests on the initial disclosure of information during the marketing period, independent of any breach of fiduciary duty, Plaintiff has failed to respond to Defendant’s argument that there can be no misrepresentation where there was no actionable representation at all. Thus, under either of these theories, Plaintiff has failed to carry its burden as to this prong of the second and third causes of action.
2. Knowledge or Reasonable Grounds For Belief
Fraud requires that a party know a statement is false, or have a reckless disregard of its truth or falsity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Negligent misrepresentation merely requires that the party lacks “reasonable ground for believing it to be true.” (Civ. Code § 1710(2).)
To support the argument that Hyde and Brown knew their statements were misrepresentations, Plaintiff notes that Saiyed attempted unsuccessfully to sell the lease for $1.8 million just months before he hired Hyde and Brown, at which time he decided instead to try to sell it for $3.5 million. Plaintiff argues that this is circumstantial evidence that Hyde and Brown conspired with Saiyed to falsify the information presented to potential buyers, in order to attract a higher price. (SAC ¶ 18.) Alternatively, Plaintiff argues that even if Hyde and Brown did not know the information they were presenting was false, they should have known that something was wrong, because they were aware of the previous, significantly lower asking price from just a few months earlier. (Opposition, 12:23-28.)
Both Hyde and Brown declare that they had no reason to believe the information provided to them by Saiyed was in any way false. (Hyde Decl. ¶¶ 4-7, 11; Brown Decl. ¶¶ 4-7, 11.) Plaintiff provides no evidence to support its contention that Hyde and Brown participated in the falsification of information regarding the lease; nor does Plaintiff provide any evidence to support its contention that Hyde and Brown were even aware of the prior selling price proposed by Saiyed. Plaintiff provides no evidence to support the claim that Hyde and Brown knew or should have known that the information was incorrect.
As such, Defendant has carried its burden as to this prong of Plaintiff’s second and third causes of action.
3. Vicarious Liability
Finally, Defendant argues that, even assuming Hyde and Brown did engage in fraud or negligent misrepresentation, it cannot be held liable for such acts, because Hyde and Brown were not affiliated with Defendant when the acts occurred. Information regarding leases, taxes, and property value were given to Plaintiff prior to September 18, 2016, the date Plaintiff entered into a purchase agreement with Saiyed. Pursuant to that agreement, Plaintiff then had 21 days to conduct investigations into the property; at the conclusion of that timeframe, Plaintiff was “conclusively . . . deemed to have (i) completed all Buyer investigations . . . ; (ii) elected to proceed with the transaction; [and] (iii) assumed all liability, responsibility, and expense . . . pertaining to that contingency or cancellation right . . . .” (Brown Decl., Exh. B ¶17(B)-(D).) This was completed on October 17, 2006. (Thrasher Decl. ¶ 5, Exh. C, Kihagi Depo. 354:8-355:10.) Meanwhile, Plaintiff acknowledges that Hyde and Brown did not affiliate with Defendant until November 2006. (SAC ¶ 5.)
Defendant therefore argues that any alleged misrepresentations had to have occurred, prior to October 17, 2006, the point at which Plaintiff had completed its own inspections, had decided to go forward with the sale, and had assumed liability for cancellation of the sale. Because this was before Hyde and Brown affiliated with Defendant, Defendant cannot be deemed responsible for misrepresentations made prior to their employment.
In order to argue that Defendant can be held liable for acts perpetrated by Hyde and Brown before they affiliated with Coldwell Banker, Plaintiff cites to one case where two stock brokerage firms were held responsible for conduct committed by an employee in part while he worked for one firm and in part while he worked for the second firm. (Blackburn v. Witter (1962) 201 Cal.App.2d 518, 520.) Yet the Blackburn court does not explicitly discuss how damages will be allocated between the two firms; it is not at all clear that the second firm is being held liable for acts the employee engaged in prior to his employment with the second firm. Rather, the employee’s wrongful conduct was ongoing, and presumably, the second firm was simply being held liable for those acts occurred after he became an employee of the second firm. (Id. at 519.)
As such, the extent to which that case is applicable to the instant situation requires, at a minimum, that Hyde and Brown’s wrongful behavior be ongoing. In other words, Defendant can only be liable for misrepresentations that occurred after Plaintiff concluded its investigation in October 2006, and after Hyde and Brown affiliated with Defendant in November 2006, but before the sale was finally closed in February 2007. As discussed both above, in the context of misrepresentation, and below, in the context of breach of fiduciary duty, the Court concludes there were no such ongoing misrepresentations.
As such, Plaintiff has failed to provide any evidence of fraud or negligent misrepresentation engaged in by Hyde or Brown after they became employees of Defendant, and has failed to carry its burden as to the second and third causes of action.
B. Fifth Cause of Action – Breach of Fiduciary Duty
“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 483.)
Plaintiff argues that the fiduciary duty exists due to Plaintiff’s agency relationship with Defendant. Defendant argues (1) that there is no actual agency relationship between Plaintiff and Defendant; (2) that there is no ostensible agency relationship between Plaintiff and Defendant based on an agency relationship between Plaintiff and Hyde and Brown; and (3) that even if there is an agency relationship, there has been no breach of any fiduciary duty.
1. Agency Relationship
In the real estate context, California has enacted specific laws to address the dual agency and subagency relationships that frequently arise. First, real estate brokers may be employed by both a buyer and a seller in the course of a real estate transaction. (Horiike v. Coldwell Banker Residential Brokerage Company (2016) 1 Cal.5th 1024, 1030-32.) In this role, the broker is a dual agent, owing fiduciary duties to both the buyer and the seller. (Id.) Additionally, brokers—including, particularly, large corporate brokerage firms—typically rely on “associate licensees” to conduct the actual sale; these individuals are also agents of the buyer and seller, owing direct duties to each, as well as subagents of the brokerage firm. (Id.)
Here, Defendant argues it was not in an actual agency relationship with Plaintiff, because it was never the brokerage agency hired by Plaintiff to oversee the purchase of the lease. According to the purchase agreement signed by Plaintiff on September 18, 2016, “Neither Buyer nor Seller has utilized the services of, or for any other reason owed compensation to, a licensed real estate broker (individual or corporate), agent, finder, or other entity, other than as specified in this Agreement, in connection with any act relating to the Property . . . .” (Brown Decl. Exh. B, ¶ 38.) At a separate point, the agreement states, “The following agency relationships are hereby confirmed for this transaction: . . . Selling Agent Tim Hyde and Jeremy Brown, DT Real Estate.” (Id. at 39B.) Therefore, Defendant argues it cannot be the actual agent of Plaintiff, because it was not listed in the purchase agreement, and was not otherwise a party to the transaction.
Plaintiff argues that notwithstanding the lack of any agency relationship at the time the purchase agreement was signed, Defendant became an agent when it affiliated with Hyde and Brown prior to the closing of escrow. As Plaintiff notes, “For purposes of liability to third parties for torts, a real estate salesperson is the agent of the broker who employs him or her. The broker is liable as a matter of law for all damages caused to third persons by the tortious acts of the salesperson committed within the course and scope of employment.” (California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1581.) Similarly, in holding that an associate licensee had fiduciary duties to the buyer and seller to the agency relationship with them, the California Supreme Court noted that “it is undisputed” that the brokerage firm likewise had a dual agency relationship with the buyer and seller. (Horiike v. Coldwell Banker Residential Brokerage Company, supra, 1 Cal.5th at 1096.) Plaintiff argues that Hyde and Brown’s later affiliation with Defendant supersedes the written purchase agreement, which by definition only included Hyde and Brown’s current brokerage firm, and could not have included Defendant until Hyde and Brown affiliated with that firm.
The Court agrees that, from the time Hyde and Brown affiliated with Defendant, Defendant became an actual agent of Plaintiff, with all attendant fiduciary duties.
Moreover, even if the later-affiliation did not supersede the written agreement to make Defendant an actual agent, the Court concludes that an ostensible agency relationship would have formed anyway. An ostensible agency relationship occurs where “intentional conduct or neglect on the part of the alleged principal creat[es] a belief in the minds of third persons that an agency exists, and a reasonable reliance thereon by such third persons.” (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173.) In Kaplan v. Coldwell Banker Residential Affiliates, Inc., the court concluded that individuals who observed advertisements from a real estate broker who referred to himself as an independent franchisee of Coldwell Banker nevertheless would reasonably be led to believe that Coldwell Banker “stood behind” the technically independent broker, and held that “[a]n ordinary reasonable person might also think that [the broker] was an ostensible agent of Coldwell Banker.” (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 747-48.) In the instant case, Plaintiff received emails from Brown explicitly stating, “In case you haven’t heard, I have moved over to Coldwell Banker Commercial. Please make a note of my new email and contact info.” (Murphy Decl., ¶ 7, Exh. 3.) Thereafter, both Hyde and Brown provided Defendant’s name, address, and phone information in the signatures of their emails. (Id.) This is sufficient to suggest to third parties that Defendant ‘stood behind’ Hyde and Brown.
As such, whether as actual agents or through an ostensible agency relationship via Hyde and Brown, it is clear an agency relationship existed between Plaintiff and Defendant.
2. Breach
Plaintiff argues that Hyde and Brown breached their fiduciary duty first and foremost by compiling a “marketing prospectus,” by which it apparently means an MLS listings, which presented current operating profits and costs and estimated future operating profits and costs under the lease. Plaintiff determined, after the close of the sale, that these numbers and estimates were false and unreasonable. (SAC ¶¶ 20-34.) Beyond this document, Plaintiff does not identify any specific actions taken by Hyde or Brown that amount to a breach of fiduciary duty; rather, the allegations generally go to omissions by Hyde and Brown. For example, Plaintiff argues that Hyde and Brown “should have verified the financial documents and information that materially affected Plaintiff’s rights and interest in the transaction” (Opposition 6:20-21); should have “investigate[d] the information provided by the Seller in the transaction prior to closing of escrow (e.g., the value of the property was misrepresented, rent rolls reports, and base rent figures)” (Opposition 7:14-16); should not have “transmitted” information from Saiyed to Plaintiff “without verification and without qualification” (Opposition 7:20-21); had a “duty to learn and disclose of financial discrepancies reflecting sales price falls within the line of their work as these facts materially affect the value or desirability of the property” (Opposition 9:10-11).
In sum, Plaintiff argues that Hyde and Brown, and by extension, Defendant, “breached such duty to counsel and advise Plaintiff regarding the propriety and ramifications of proceeding with the transaction when there were glaring discrepancies in conflicting information about rental incomes, operating expenses, property taxes and tenant leases. If straightforward information was not readily obtainable, Agents were under a duty to disclose this fact.” (Opposition 13:9-12.)
Defendant, by contrast, argues that the scope of its fiduciary duty was much more narrow. Defendant notes that “‘the question is not whether there is a fiduciary duty, which there is in every broker-customer relationship; rather it is the scope or extent of the fiduciary obligation, which depends on the facts of the case.’” (Rosenthal v. Great Western (1996) 14 Cal.4th 394, 425; see also Carleton v. Tortosa (1993) 14 Cal.App.4th 745 [upholding a brokerage agreement that expressly excluded legal and tax questions from being within the scope of the broker’s fiduciary duty].)
Defendant argues that the purchase agreement specifically delineates the scope of fiduciary duties owed to Plaintiff:

“SCOPE OF BROKER DUTY: Buyer and Seller acknowledge and agree that Brokers (i) do not decide what price Buyer should pay or Seller should accept; (ii) do not guarantee the condition of the Property; (iii) do not guarantee the performance, adequacy or completeness of inspections, services, products or repairs provided or made by Seller or others; (iv) shall not be responsible for the title or use of the Property; (vi) shall not be responsible for identifying location of boundary lines or other items affecting title; (vii) shall not be responsible for verifying square footage, representations of others or information contained in inspection reports, MLS or PDS, advertisements, flyers or other promotional material, unless otherwise agreed in writing; (viii) shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered into by Buyer or Seller in the course of this representation; and (ix) shall not be responsible for providing other advice or information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seller agree to seek legal, tax, insurance, title and other desired assistance from appropriate professionals.”
(Brown Decl., Exh. B, ¶ 41.)
Based on this, Defendant argues it is not responsible for the truth of any matter presented to Plaintiff in the MLS listing (which, additionally, as discussed above, also included an express disclaimer on the face of the advertisement). It additionally argues that nothing else raised by Plaintiff qualifies as a breach within the scope of their duty.
Plaintiff challenges this assertion by citing to several cases, each of which include expansive language regarding the scope of a real estate agent’s fiduciary duties. The broadest of these, for example, states:

[A] broker's fiduciary duty to his client requires the highest good faith and undivided service and loyalty. . . . ‘The broker as a fiduciary has a duty to learn the material facts that may affect the principal's decision. He is hired for his professional knowledge and skill; he is expected to perform the necessary research and investigation in order to know those important matters that will affect the principal's decision, and he has a duty to counsel and advise the principal regarding the propriety and ramifications of the decision. The agent's duty to disclose material information to the principal includes the duty to disclose reasonably obtainable material information. [¶] ... [¶] The facts that a broker must learn, and the advice and counsel required of the broker, depend on the facts of each transaction, the knowledge and the experience of the principal, the questions asked by the principal, and the nature of the property and the terms of sale. The broker must place himself in the position of the principal and ask himself the type of information required for the principal to make a well-informed decision. This obligation requires investigation of facts not known to the agent and disclosure of all material facts that might reasonably be discovered.’
(Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25-26 [quoting 2 Miller & Starr, Cal. Real Estate 2d (1989) Agency, § 3.17].)

While each of the cases cited makes note of the importance of the fiduciary duty, however, the cases are frequently less favorable to Plaintiff’s claim than Plaintiff presents. The above excerpt, for example, relies almost entirely on Miller and Starr California Real Estate, which, only a few sections later, notes that the scope of a fiduciary duty can be limited by contract. (See 2 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 4:17) [“The extent of the duties of the agent are determined by the terms of the agreement between the parties and the contract can define, modify, and limit the terms of the agency and the agent's fiduciary duties. The terms of the contract between the principal and the agent may limit the scope of the agency and restrict the scope of the agent's fiduciary duties.”].) Moreover, this case is actually related to the inapplicability of certain statutes of limitations to the fiduciary duty, not to the scope of the fiduciary duty. (Id. at 20.)
Another of the cases cited by Plaintiff, for example, notes that a fiduciary duty was only violated in that case because the real estate broker did not “advis[e] the client that he is merely passing on information received from the seller without verifying its accuracy.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562 fn. 3.) Here, by contrast, the MLS listing included a disclaimer to that affect. Another case focuses on what a seller, as distinct from a real estate broker, is obligated to disclose to potential buyers, and is thus off point for this action. (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 410.) A third focuses on the duty of a real estate broker to disclose information already in his possession, rather than addressing the breadth of the duty to investigate material facts. (Michel v. Moore & Associates (2007) 156 Cal.App.4th 756, 762.) As noted above, Plaintiff has provided no evidence to support its contention that Hyde and Brown knew any of the information they passed to Plaintiff was inaccurate.
Perhaps the case that most strongly supports Plaintiff’s argument is a recent decision by the California Supreme Court. In that case, a buyer sued a real estate agent after discovering that the square footage of the home he had purchased was not 15,000 square feet, as the agent had portrayed to him in marketing documents. (Horiike v. Coldwell Banker Residential Brokerage Company (2016) 1 Cal.5th 1024.) The Court held that the agent breached his fiduciary duty by failing to disclose to buyer that, according to the tax assessor’s office and a building permit, this was inaccurate. (Id. at 1104.) This duty was breached even though the marketing document included a disclaimer stating that that the agent did not guarantee the accuracy of the square footage, and even though the agent gave to the buyer a “form advisory” that warned that the agent had not verified square footage, and recommended that buyer seek an independent evaluation of the size of the property. (Id. at 1032-34.)
Even here, however, the case at hand is readily distinguishable because of the terms of the contract. In Horiike, even though the agent had provided Buyer with a “form advisory” warning about the square footage, the contract signed by the agent and the Buyer also explicitly provided that the agent was “obligated to disclose known facts materially affecting the value or desirability of the property.” (Id. at 1034.) In the instant case, the scope of the fiduciary duty, quoted above, was more narrowly defined. (Brown Decl., Exh. B, ¶ 41.) Additionally, in Horiike, the agent was explicitly aware of the contradictory evidence regarding the actual square footage. Here, Plaintiff has been unable to point to any evidence suggesting Hyde and Brown knew information provided to Plaintiff was false. Plaintiff has also been unable to provide any evidence that Hyde and Brown knew of the earlier sales price, and therefore had even a circumstantial reason to be skeptical of the information provided by the Seller. Finally, even if Hyde and Brown had some reason to be skeptical, at no point does Plaintiff state what Hyde and Brown should have done to verify the information; after all, Plaintiff’s own investigations into Seller’s representations, from September 18 to October 17, turned up nothing of sufficient concern to prevent Plaintiff from going forward with the deal, and it is not clear what steps Hyde and Brown should or could have taken beyond Plaintiff’s own investigations.
Accordingly, Defendant has carried its burden of showing there are no triable issues of fact as to Plaintiff’s contention that Defendant breached its fiduciary duties.
C. Sixth Cause of Action – Civil Conspiracy
Defendant argues that without carrying their burden as to other causes of action, there can be no claim of conspiracy. Plaintiff does not respond to this proposition, and instead focuses the entirety of the portion of their opposition dedicated to civil conspiracy to repeating, from elsewhere in the opposition, arguments regarding Defendant’s liability for Hyde and Brown’s actions under theories of respondeat superior and ostensible agency.
Having failed to carry its burden on all other causes of action, Plaintiff has likewise failed to present any evidence that a conspiracy to commit those causes of action existed.
D. Conclusion
The motion for summary judgment is GRANTED.
The motion for summary adjudication is MOOT.
Defendants to provide notice of this ruling.

Case Number: BC465694    Hearing Date: January 20, 2017    Dept: 50

Superior Court of California
County of Los Angeles
Department 50

HENRY M. LEE LAW CORPORATION
Plaintiff,
vs.
OK SONG CHANG, et al.
Defendants. Case No.: BC 465694
Hearing Date: January 20, 2017

Hearing Time: 8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT/CROSS-COMPLAINANT OK SONG CHANG’S MOTION TO SET ASIDE DEFAULT ENTERED BY CLERK ON AUGUST 16, 2016

AND RELATED CROSS-COMPLAINT

Background
Plaintiff Henry M. Lee Law Corporation (“Lee Law”) filed this action on July 21, 2011 against Defendant Ok Song Chang (“Chang”). The action arises out of Lee Law’s representation of Chang in a prior lawsuit. Plaintiff filed a First Amended Complaint (“FAC”) on April 13, 2012. The FAC asserts causes of action for breach of contract and declaratory relief. On May 21, 2012, Chang filed an answer to the FAC as well as a Cross-Complaint against Henry M. Lee (“Lee”) and Lee Law. The Cross-Complaint asserts causes of action for breach of fiduciary duty and fraud. On December 4, 2015, Lee Law filed the operative Third Amended Complaint (“TAC”). The TAC asserts causes of action for (1) breach of contract; (2) intentional interference with contract; (3) interference with prospective economic relations; (4) intentional misrepresentation/fraud; (5) fraudulent transfer of real property; and (6) indemnity.
On August 16, 2016, the Court Clerk entered Chang’s default on the TAC. On September 7, 2016, Chang filed an answer to the TAC under the mistaken belief that her default had not been entered. Chang subsequently discovered the default and filed the instant motion seeking an order setting aside the August 16, 2016 default.

Discussion
As an initial matter, the Court notes that the answer to the TAC filed by Chang on September 7, 2016 is ineffective because her default had already been entered. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385 (“The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.”).) Therefore, the Court strikes Chang’s answer to the TAC.
Chang moves to set aside the default entered on August 16, 2016 on a number of grounds including, inter alia, that the entry of default is void, that the issues raised by the TAC were already at issue thus obviating the need for Chang to file an answer to the TAC, and that the default was entered as a result of mistake by Chang’s counsel.
CCP §473(b) provides in pertinent part:

“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any (1) resulting default entered by the clerk . . . or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Based on this statutory language, if a motion brought pursuant to §473(b) is accompanied by an attorney affidavit of fault, relief is mandatory unless the default or dismissal did not in fact result from the attorney’s mistake, inadvertence, surprise, or neglect. (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604-1605.) The purpose of this mandatory relief provision is “to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Grp., Inc. (2002) 28 Cal.4th 249, 257 (emphasis in original; internal quotations omitted).)
“[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (negative treatment on other grounds).) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)
Here, Chang’s motion for relief is accompanied by a declaration from her counsel, Ralph Rogari, which provides the following: After Rogari was retained in this case in late November 2015, his focus was on the deposition of Lee, and he did not calendar the due date for Chang’s response to the TAC. (Rogari Decl. ¶1.) Rogari also neglected to speak with Chang’s former counsel, Delmas Wood, about what response if any should be filed to the TAC. (Id.) In March 2016, Rogari looked at the Court docket and saw that no answer to the TAC had been filed. (Rogari Decl. ¶2.) Based on Rogari’s prior experience, legal research, and a review of the relevant pleadings, Rogari determined that the filing of a new answer to the TAC was unnecessary because there were no new allegations in the TAC that had not been disputed by Chang in either her original answer or Cross-Complaint. (Rogari Decl. ¶¶3-5.) When the parties appeared in Court on August 31, 2016 for a status conference hearing, Rogari informed the Court that Lee Law had served a request for the clerk to enter Chang’s default on the TAC. (Rogari Decl. ¶7.) The court ordered the parties to meet and confer and, if agreement was not reached, and depending upon whether default had been entered, for Chang to either file an answer to the TAC or a motion for relief from default. (Rogari Decl. ¶8.) Rogari subsequently checked the docket sheet and, because it did not then reflect the entry of any default, Rogari filed an answer to the TAC on Chang’s behalf on September 7, 2016. (Id.) Rogari then learned that the clerk had entered the default of Chang on August 16, 2016. (Rogari Decl. ¶9.) Because Lee refused to stipulate to set aside that default, Chang filed the instant motion for relief. (Id.) It remains Rogari’s view that Chang was not required to file a new answer to the TAC. (Rogari Decl. ¶10.)
The Court disagrees with Rogari’s conclusion that Chang was not required to file an answer to the TAC. “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) Further, “If the complaint is amended … [t]he defendant shall answer the amendments, or the complaint as amended…” (CCP §471.5.) Chang correctly points out that the Code provision requiring answers to amended complaints is interpreted as applying only to amendments making substantive changes—i.e., changing the basic cause of action, or adding a new one. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-809.) Thus, no new answer is required “where the amendment is merely as to formal or immaterial matters, and does not change the cause of action,” or “where the original … answer set forth a sufficient defense to the … complaint as amended.” (Id.) However, prior to the entry of default, Chang’s only answer that was on file was her answer to the FAC. The TAC introduced several new theories of liability and causes of action that were not at issue in the FAC. Chang’s answer to the FAC does not address the TAC’s new claims.
In any event, the Court finds that relief from default is warranted based on Rogari’s declaration which establishes that Chang’s failure to file an answer to the TAC was solely based on Rogari’s mistaken interpretation of the law. (See Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008 (holding that a party was entitled to mandatory relief where counsel’s “failure to answer was not accidental or inadvertent, but was the calculated result of his mistaken suppositions”).)
In opposition, Lee and Lee Law argue that Chang is required to show “excusable” neglect. However, to be entitled to mandatory relief, there is no requirement that counsel’s neglect be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) Indeed, §473(b) “does not require an explication of reasons as a prerequisite to mandatory relief. … [W]hat must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) “[The] purposes [of §473(b)] are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.” (Id. at 439.)
Here, there is no indication that Chang had anything to do with the decision not to file an answer to the TAC. The evidence establishes that this was a calculated decision by Chang’s counsel. Accordingly, Chang is entitled to mandatory relief pursuant to §473(b). The Court need not address the arguments related to alternative grounds for relief.

Conclusion
Based on the foregoing, Chang’s motion to set aside default is granted. Chang is ordered to file an answer to the TAC within one day from the date of this order. Chang is ordered to provide notice.

Case Number: BC493917    Hearing Date: January 20, 2017    Dept: 46

Case Number: BC493917
ARMEN MOVSESYAN ET AL VS ARMAN HOVHANNISYAN ET AL
Filing Date: 10/16/2012
Case Type: Fraud (no contract) (General Jurisdiction)

1/20/2017
OSC RE Dismissal (AFTER SETTLEMENT)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING

Plaintiff advised the court by filing a Notice of Conditional Settlement of the Entire Action that the parties reached a settlement of the action on or before 12/30/2013. Where the dismissal of the action is conditional and the Plaintiff specifies a date by which the action is to be dismissed, and the Plaintiff fails to dismiss the action by that date, the court must dismiss the action. CRC 3.1385(c)(2). As there has been no showing of good cause for failure to dismiss the action after the settlement, the action is dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of the settlement pursuant to CCP §664.6 or entering judgment pursuant to stipulation in the event of a failure to perform the terms of a settlement agreement.
IT IS SO ORDERED:

_____________________
Frederick C. Shaller, Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Case Management Conference Order was served on the parties by e-mail pursuant to CRC 3.1109 at the following addresses: bogert@sizemorelawfirm.com; jlenze@lenzelawyers.com; hmessrelianlaw@gmail.com

______________________
Frederick C. Shaller, Judge

Case Number: BC502929    Hearing Date: January 24, 2017    Dept: S27

Plaintiff and Cross-Defendant Atziri Olivo moves to compel Defendant and Cross-Complainant County of Los Angeles ("County") to provide further responses to Special Interrogatories Set #1. Further responses are sought as to items 5, 6, 27-40, 47, 48, and 49. No request for monetary sanctions is noticed.


After the parties met and conferred over the initial responses, County voluntarily served further responses by mail on November 30, 2016. The present motion was filed within 45 days on December 22, 2016. The motion is timely.

After considering the interrogatories, the further responses, the objections interposed, and the briefing of the parties, the Court rules as follows: (If the motion is granted, all objections are overruled. If denied, either the further responses were adequate or the objections well taken)

Denied: 5, 6, 30, 31, 33-40;
Granted: 27-29, 32, 47-49.

Further responses must be served within 30 days.

Case Number: BC504560    Hearing Date: January 23, 2017    Dept: 46

Case Number: BC504560
JUNE COOLEY VS WORLD SAVINGS BANK FSB ET AL
Filing Date: 04/02/2013
Case Type: Other Real Property Rights Case (General Jurisdiction)

1/23/2017
OSC RE Dismissal(AFTER SETTLEMENT)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.


TENTATIVE RULING

The court was advised that as a result of a Mandatory Settlement Conference held on 10/28/2016 that the parties reached a settlement of the action. The court issued an OSC regarding dismissal of the action. The parties last appeared on 12/22/2017 and indicated that they would have the settlement fully documented and that the action could be dismissed by 1/23/2017. It is now nearly 90 days after the settlement and there is still no dismissal or declaration explaining why the matter is not dismissed.

As there has been no showing of good cause for failure to dismiss the action after the settlement, the action is dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of the settlement pursuant to CCP §664.6 or entering judgment pursuant to stipulation in the event of a failure to perform the terms of a settlement agreement.

IT IS SO ORDERED:


______________________
Frederick C. Shaller, Judge

Case Number: BC506701    Hearing Date: January 23, 2017    Dept: O

Marshall v. Shun Fat Supermarket Inc. (BC506701)


Defendant Shun Fat Supermarket, Inc.’s MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Respondents: Defendant Tan Nam Corporation


TENTATIVE RULING

Defendant Shun Fat Supermarket, Inc.’s motion for determination of good faith settlement is GRANTED.



Defendant Shun Fat Supermarket, Inc. (“Supermarket”) moves for good faith settlement determination between it and Plaintiff Marshall for $200,000.00.

Pursuant to CCP 877.6, in an action in which two or more parties are alleged to be joint-tortfeasors, they are entitled to a hearing concerning the good faith issue of a settlement. Tech-Bilt, Inc. v. Woodard-Clyde & Assoc. (1985) 38 Cal.3d 488 set out the goals of settlement: the equitable sharing of costs among parties at fault, and the encouragement of settlement. The determination of settlement should include consideration as to whether the settlement was within the “reasonable range” of the settling tortfeasors proportional share of comparative liability, and the recognition that settlors should pay less in settlement than if they were found liable at trial. (Id. at 499.)

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (CCP § 877.6(c).)

A determination of good faith requires that the court calculate a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc.’s, supra, 38 Cal.3d at p. 499.) Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Ibid.) Evaluation of the parties' allocation of settlement proceeds is committed to the sound discretion of the trial court in the good faith settlement approval process. (Erraca’s v. Superior Court (1993) 19 Cal. App. 4th 1475, 1489.)

Here, defendant agreed to settle with plaintiff for $200,000 which corresponds to approximately 50% of the full amount of Plaintiff’s clamed economic damages. The court further finds that the settlement is within the ballpark of Supermarket’s liability. Testimony revealed that the liquid on which Plaintiff slipped may have emanated from the tofu manufactured by Tan Nam corporation (“Tofu Manufacturer”) which was displayed on a two-tier metal rack near the accident location. This settlement was reached at a Mandatory Settlement Conference, representing a fair and reasonable approximation of Supermarket’s share of liability, especially given the fact that a settlor should pay less in settlement than it would if it were found liable after trial. Settling party claims a defense of no notice, making liability questionable. Here, there is no indication of collusion, fraud, or tortuous conduct aimed to injure the non-settling defendants.

Defendant has made a sufficient showing of all the Tech-Bilt factors and the court finds that the settlement was made in good faith. Motion is GRANTED.

Case Number: BC509058    Hearing Date: January 23, 2017    Dept: 97

26

ARLENE SALDANA, et al.,
Plaintiffs,

ABRAHAM MUTUC, et al.,
Defendants.
Case No.: BC509058

Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
MOTION TO SET ASIDE DISMISSAL
Plaintiffs request the Court to set aside its dismissal entered on October 7, 2016.
Plaintiffs’ counsel states that Plaintiffs’ counsel failed to resubmit the default packet as requested by the Court because there was a miscommunication between Plaintiffs’ counsel and Plaintiffs’ counsel’s staff. (Diana S. Diskin Decl. ¶ 7.)
Plaintiffs’ unopposed motion is granted pursuant to CCP § 473(b). This motion was made within six months of the Court’s dismissal of Plaintiffs’ action and is accompanied by evidence demonstrating that this matter was dismissed through the mistake of Plaintiffs’ counsel. The Court’s October 7, 2016, order dismissing Plaintiffs’ action is vacated.

Case Number: BC512290    Hearing Date: January 20, 2017    Dept: 46

Case Number: BC512290
UNION BANK N A VS JOHNSON & CEBULA A PROFESSIONAL CORPORATIO
Filing Date: 06/17/2013
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

1/20/2017
OSC RE Dismissal (AFTER SETTLEMENT)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING

Plaintiff advised the court by filing a Notice of Conditional Settlement of the Entire Action that the parties reached a settlement of the action on or before 1/28/2014. Where the dismissal of the action is conditional and the Plaintiff specifies a date by which the action is to be dismissed, and the Plaintiff fails to dismiss the action by that date, the court must dismiss the action. CRC 3.1385(c)(2). As there has been no showing of good cause for failure to dismiss the action after the settlement, the action is dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of the settlement pursuant to CCP §664.6 or entering judgment pursuant to stipulation in the event of a failure to perform the terms of a settlement agreement.
IT IS SO ORDERED:

_____________________
Frederick C. Shaller, Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Case Management Conference Order was served on the parties by e-mail pursuant to CRC 3.1109 at the following addresses: joshuad@amlegalgroup.com; byronm@amlegalgroup.com.

______________________
Frederick C. Shaller, Judge

Case Number: BC512329    Hearing Date: January 24, 2017    Dept: 97

34

KEVIN RAMON DUNCANS, et al.,
Plaintiffs,

SEONG HWANG, et al.,
Defendants.
Case No.: BC512329

Hearing Date: January 24, 2017

[TENTATIVE] ORDER RE:
MOTION TO SET ASIDE DISMISSAL
Plaintiff Kevin Ramon Duncans (“Plaintiff”) requests the Court to set aside its dismissal entered on May 16, 2016.
Plaintiff argues that the dismissal should be set aside pursuant to CCP § 473(b) due to Plaintiff’s counsel’s mistake, inadvertence, or surprise. Plaintiff’s counsel states that Plaintiff’s counsel was unable to appear on time for trial because Plaintiff’s counsel’s car broke down on the freeway while on the way to Court. (Michael Cambridge Decl. ¶ 2.) Plaintiff’s counsel states that he telephoned Department 97 multiple times but could not reach Court staff. (Ibid.) Plaintiff’s counsel further states that he informed Defendants’ counsel’s secretary of Plaintiff’s counsel’s car problems, however, the message was not relayed to the Court in time to prevent the Court from dismissing the case. (Ibid.)
In Opposition, Defendants argue that Plaintiff’s motion is untimely since the notice was not filed within a reasonable time. Defendants also argue that Plaintiff has failed to show that Plaintiff’s counsel’s conduct was excusable. Defendants insist that Plaintiff’s counsel’s reason for his nonappearance was inexcusable but provides no explanation for how car issues constitutes inexcusable neglect. Lastly, Defendants argue that if the Court decides to vacate its dismissal, Plaintiff’s counsel should be ordered to pay Defendants’ compensatory legal fees and costs as required by CCP § 473(b).
CCP § 473(b) provides that an “[a]pplication for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” “Stated otherwise, in addition to the necessity of making application within the six months period it also must be made within a reasonable time, and what is reasonable must depend primarily on the facts and circumstances of each individual case.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 609.) “Where a party has filed a motion for relief after an extended delay without any adequate excuse therefor, it is an abuse of discretion for a trial court to grant relief under section 473.” (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1183, as modified on denial of reh'g (July 8, 1998).) More specifically, in Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 524, the California Supreme Court ruled that it was an abuse of discretion for the trial court to aside a default judgment pursuant to CCP § 473(b) where the defendant’s attorney, without explanation, delayed for more than three months in filing the motion after learning of the entry of default. (Id. at 531-32.)
Plaintiff’s counsel was mailed a notice of ruling on May 18, 2016. The notice of ruling informed Plaintiff’s counsel that the current matter had been dismissed. Plaintiff’s counsel then filed the present motion on November 14, 2016, with no explanation for the nearly six-month delay. Based on the foregoing, Plaintiff has not met its burden to show that the present motion was made within a reasonable time after the dismissal was entered.
Plaintiff’s motion is denied. Defendants are ordered to give notice of this order.

Case Number: BC518455    Hearing Date: January 24, 2017    Dept: 97

35

SANTOS TECUM,
Plaintiff,
v.

TERRENCE CONRAD MEEKS, et al.,
Defendants.
Case No.: BC518455
Hearing Date: January 24, 2017

[TENTATIVE] ORDER RE:
MOTION BY DEFENDANTS’ COUNSEL TO BE RELIEVED AS COUNSEL

California Rules of Court (“CRC”) Rule 3.1362 requires motions to be relieved as counsel pursuant to CCP § 284(2) be made on Judicial Council Forms MC-051 (Notice of Motion and Motion to be Relieved as Counsel), MC-052 (Declaration in Support of Attorney’s Motion to Be Relieved as Counsel), and MC-053 (Order Granting Attorney’s Motion to Be Relieved as Counsel). (CRC, Rule 3.1362.) Furthermore, the requisite forms must be served on the client and all other parties who have appeared in the case. (CRC, Rule 3.1362(d).) If the client is served by mail, there must be a declaration showing confirmation of the service address within the past 30 days or evidence that efforts have been made to confirm the service address. (Id.)
The Court finds that all procedural requirements of CRC, Rule 3.1362 have been met, and all mandatory judicial council forms used. Counsel states that her clients’ conduct has rendered it unreasonably difficult for her firm to continue representation and Counsel has confirmed within the last 30 days that the clients’ address is current. Proof of service indicates that all papers have been served on the clients and all other parties.
Counsel’s Motion to be Relieved as Counsel with respect to Defendants Olympic Harbor Investment Corporation; Kiyoshi Elden Minato & Rickie Minato as trustees for the Living Trust of Kiyoshi Elden Minato & Rickie Minato Dated March 30, 2005; and the Living Trust of Kiyoshi Elden Minato & Rickie Minato Dated March 30, 2005 (“Defendants”) is granted. The order provided by Counsel will be signed at the hearing. The order will become effective upon the filing of a proof of service of a signed copy of the order on Defendants.
Counsel is ordered to give notice of this order.

Case Number: BC519074    Hearing Date: January 25, 2017    Dept: 98

PARIVASH F. LAALY,
Plaintiff,
vs.

CITY OF LOS ANGELES, et al.,

Defendants.

Case No.: BC519074

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL DEFENDANT TO FURTHER PRODUCE PERSON(S) MOST KNOWLEDGEABLE FOR DEPOSITION

Dept. 98
10:00 a.m.
January 25, 2017

On August 21, 2013, Plaintiff Parivash F. Laaly (“Plaintiff”) filed this action for alleged damages arising out of a November 17, 2011 trip and fall. On December 2, 2016, Plaintiff filed the instant Motion for an order compelling Defendant City of Los Angeles to further produce its Person(s) Most Knowledgeable for deposition and for the production of documents and things. On December 16, 2016, the parties participated in an Informal Discovery Conference (“IDC”). The Court continued the hearing on this Motion from December 27, 2016 to January 25, 2017. As of January 20, 2017, no opposition, reply, or other supplemental brief has been filed. As such, on the hearing date of January 25, 2017 at 10:00 a.m., the Court will hold another IDC to discuss the remaining issues, if any.

Dated this 25th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC519314    Hearing Date: January 25, 2017    Dept: 46

Case Number: BC591314
WAYNE NEAL VS CITY OF LOS ANGELES
Filing Date: 08/14/2015
Case Type: Wrongful Termination (General Jurisdiction)

1/25/2017
Order to Show Cause (RE POST-SETTLEMENT DISMISSAL)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING

Plaintiff advised the court by filing a Notice of Unconditional Settlement of the Entire Action that the parties reached a settlement of the action on or before 12/2/2016. The Notice requires Plaintiff dismiss the action within 45 days or by 1/17/2017. CRC 3.1385(b) states that if, after notice of settlement of the action, the plaintiff fails to file a request for dismissal within 45 days thereafter, the court must dismiss the case unless good cause is shown why the case should not be dismissed. As there has been no showing of good cause for failure to dismiss the action after the settlement, the action is dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of the settlement pursuant to CCP §664.6 or entering judgment pursuant to stipulation in the event of a failure to perform the terms of a settlement agreement.
IT IS SO ORDERED:

______________________
Frederick C. Shaller, Judge

Case Number: BC526258    Hearing Date: January 20, 2017    Dept: 56

Case Name: Francis v. City of Los Angeles
Case No.: BC526258
Motion: Defendant’s Motion for Summary Judgment/Adjudication


No advance tentative ruling

Case Number: BC528319    Hearing Date: January 24, 2017    Dept: A15

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

JOHN LaMOURE, )
) Case Number BC528319
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
JPMORGAN CHASE & COMPANY, et al., ) January 24, 2017
) Dept. A-15
Defendants. ) Judge Randolph A. Rogers
____________________________________)

Plaintiff John LaMoure’s motion for a protective order and Defendant JPMorgan Chase Bank, N.A.’s two motions to compel further responses for RFA and special interrogatories came on for hearing on January 24, 2017. Plaintiff John LaMoure appeared through his counsel of record, ________________. Defendant JPMorgan Chase Bank, N.A. appeared through its counsel of record, ________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

That Plaintiff John LaMoure’s motion for a protective order is DENIED;

That Defendant JPMorgan Chase Bank, N.A.’s two motions to compel further responses for RFA and special interrogatories are DENIED; provided, however, in accordance with Plaintiff’s representation, Plaintiff shall provide full and complete verified responses to Chase’s special interrogatories, set three, and RFAs, set one, by no later than January 31, 2017. Any outstanding discovery issues arising therefrom will be discussed between counsel pursuant to the meet and confer obligations, and remaining disputes will be filed with this Court by no later than February 07, 2017. Opposition thereto will be filed no later than February 10, 2017, and any required hearing will occur no later than February 16, 2017;

The Court reserves jurisdiction over the requests for sanctions.


SO ORDERED this the _____ day of January, 2017.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT


JOHN LaMOURE, )
) Case Number BC 528319
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
JPMORGAN CHASE & COMPANY, et al., ) January 24, 2017
) Dept. A-15
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises from a slip and fall. On December 7, 2011, Plaintiff John LaMoure (“Plaintiff”) slipped and fell on ice that formed outside the front door of Defendant JP Morgan Chase Bank, N.A. (“Chase”). On November 20, 2013, Plaintiff brought suit, alleging causes of action for premises liability, negligence, and negligent hiring, training, and supervising. On December 5, 2013, Defendant Felix Longoria, dba Cornerstone Landscape, Inc. (“Longoria”), was substituted in for Doe 21. Defendant Eco Maintenance Management, LLC (“Eco”) is a landscaping company hired by Chase to provide maintenance of its walkway and surrounding area. Eco, in turn, contracted with Longoria to provide maintenance and winterization services. Answers were filed by each of the Defendants and discovery ensued. Chase filed its Cross-Complaint on February 14, 2014 (“Chase XC”). Longoria filed his Cross-Complaint on March 21, 2014 (“Longoria XC”). Eco its Cross-Complaint on May 1, 2014 (“Eco XC”). Discovery ensued.

2. Plaintiff’s motion for a protective order was filed on December 15, 2016, and requests that the Court order that Chase pay the full $5,000 in fees requested by Plaintiff’s expert for Chase’s deposition of the expert.

3. Chase opposed the motion for protective order on January 10, 2017, arguing that Chase did pay Plaintiff’s expert witness his listed $1,000 fee for a non-videotaped deposition. The sole issue remaining is whether Chase must also pay the additional $4,000 for a videotaped deposition when Plaintiff is the party seeking to have the deposition videotaped.

4. On December 22, 2016, Chase filed two motions to compel further responses: One for Chase’s requests for admission, set one, questions 1-3 and 5-25; the second for Chase’s special interrogatories, set three; arguing that Plaintiff provided evasive responses to the requested discovery.

5. Plaintiff opposed both motions to compel further on January 10, 2017, arguing that Chase failed to properly meet and confer.

6. Trial is set for March 17, 2017.

7. Discussion – Protective Order – Code of Civil Procedure Section 2025.420 provides that the Court may, for good cause, issue a protective order “to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code of Civil Procedure § 2025.420(b). The motion shall be accompanied by a meet and confer declaration setting forth facts demonstrating a good faith and reasonable attempt to resolve all issues presented by the motion. Code of Civil Procedure § 2025.420(a). The moving party bears the burden of proof to show good cause. Code of Civil Procedure § 2025.420(c); see also Nativi v. Deutsche Bank National Trust Company, (2014) 223 Cal.App.4th 261, 318.

8. Meet and Confer – A meet and confer declaration must sate facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” was undertaken by the moving party. Code Civ. Proc., § 2016.040. Here, it appears to the Court that the parties have satisfied their meet and confer obligation as to the protective order.

9. The issue presented to the Court is whether the Code of Civ. Proc. § 2034.430 requires the noticing party to pay additional fees for the deposition of an expert witness when (1) another party to the litigation requests to have the deposition videotaped, and (2) the expert witness charges greater fees for a video deposition than one recorded stenographically.

10. The Court notes that the Code of Civ. Proc. § 2025.330 makes video or audio recorded depositions available to the parties of a litigation. Section 2025.330 explicitly states that “[t]he party noticing the deposition may also record the testimony by audio or video technology… [and a]ny other party, at that party's expense, may make an audio or video record of the deposition” Code of Civ. Proc. § 2025.330(b) (emphasis added). The Court emphasizes the language indicating that making a video or audio record of the deposition is optional to the parties of the litigation, and that the legislature clearly intended for any party exercising that option to pay for any additional expenses incurred through its exercise. In order words, the legislature wrote Code of Civ. Proc. § 2025.330 such that parties seeking to video or audio tape a deposition could not force another party to pay for it. Pursuant to the Court’s reading of the statute, the Court finds that Chase has no obligation to pay the additional $4,000 in expert witness fees for a videotaped deposition when Plaintiff is the party seeking to exercise the option to videotape the deposition.

11. Sanctions – The Court must impose a monetary sanction pursuant to the Code of Civ. Proc. § 2023.030 for misuse of the discovery process unless it finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition unjust.

12. Here, while the Court has ruled against Plaintiff as to the substance of their protective order, it nevertheless finds that the imposition of a sanction would be unjust, as Plaintiff should not be penalized for attempting to make a colorable (though incorrect) legal argument accruing to the financial benefit of their client. Further, the Court considers the additional $4,000 necessary to pay for a video deposition of the expert witness to be of sufficient detriment to not warrant sanctions.

13. Accordingly, the Court DENIES Plaintiff’s motion for a protective order, and DENIES both parties’ request for sanctions.

14. Compel Further Responses – Code of Civil Procedure §2030.300, §2031.310, and §2033.290 provide for a party to bring a motion to compel further responses to interrogatories, RFP, or RFA where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP §2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. CCP §2030.300(b); §2031.310(b)(2); §2033.290(b). A motion to compel further responses to RFPs must further specifically identify facts showing good cause for the discovery. CCP §2031.310(b)(1). The motion must be brought within 45 days of service of the responses or supplemental responses. CCP §2030.300(c); §2031.310(c); §2033.290(c). Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. CCP §2030.300(d); §2031.310(h); §2033.290(d).

15. Meet and Confer – A meet and confer declaration must sate facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” was undertaken by the moving party. Code Civ. Proc., § 2016.040. Plaintiff argues that Chase failed to sufficiently meet and confer prior to filing the instant motion, and the Court agrees.

16. The Court finds that insufficient efforts were made by the parties to meet and confer prior to filing the instant motion. The Obregon v. Superior Court case is instructive, as the court found that it is appropriate for a trial court to require additional good faith efforts to resolve the dispute informally when the plaintiff’s motion showed that the only efforts made to avoid the motion were that (1) there was an extension by the plaintiff of the time to respond to discovery, and (2) the only response received one day prior to the motion was a letter informing plaintiff of defendant’s objections, but offering to negotiate further. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 428–29. Like in Obregon, Chase’s single letter requesting additional discovery without any further attempts to confer with Plaintiff prior to filing the instant motion are inadequate to satisfy the meet and confer requirements.

17. The Court notes, however, that Chase and Plaintiff have made additional efforts to meet and confer as to the further production of responsive answers to Chase’s RFAs and special interrogatories following Chase’s filing the motion on December 22, 2016. Plaintiff has represented to the Court that all that he needed was additional time in order to provide responsive answers to the Court, namely two weeks’ time at or around January 06, 2017. As the trial date is presently set for March 17, 2017, and there may nevertheless be outstanding issues related to discovery even after Plaintiff produces further responses, the Court finds it entirely appropriate to issue an order as to the special interrogatories and RFAs.

18. Sanctions – As noted above, sanctions are appropriate against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. Code Civ. Proc., § 2030.300(d); Code Civ. Proc., § 2031.310(h). Here, the Court finds that both parties acted with substantial justification both making and opposing the instant motion, making sanctions inappropriate.

19. Accordingly, while the Court DENIES both motions to compel further responses and the requests for sanctions, the Court will require Plaintiff to provide full and complete responses to Chase’s special interrogatories, set three, and RFAs, set one, by no later than January 31, 2017. Any outstanding discovery issues arising therefrom will be discussed between counsel pursuant to the meet and confer obligations, and remaining disputes will be filed with this Court by no later than February 07, 2017. Opposition thereto will be filed no later than February 10, 2017, and any required hearing will occur no later than February 16, 2017.

SO ORDERED this the ______ day of January, 2017.


_____________________________
RANDOLPH A. ROGERS, JUDGE

Case Number: BC529478    Hearing Date: January 20, 2017    Dept: 97

29

JUAN MANUEL GARCIA, et al.,
Plaintiff,
v.

PLAYHOUSE NIGHTCLUB, et al.,
Defendants.

Case No.: BC529478
Hearing Date: January 20, 2017

[TENTATIVE] ORDER RE:
DEFENDANT 6506 HOLLYWOOD ASSOCIATES, LP’S MOTIONS TO COMPEL RESPONSES AND MOTION TO DEEM REQUEST FOR ADMISSIONS (SET ONE) ADMITTED AS TO PLAINTIFF JUAN MANUEL GARCIA

CROSS-DEFENDANT ULTIMATE PROTECTION FORCE PATROL INC.’S MOTION TO COMPEL RESPONSES AS TO PLAINTIFFS JUAN GARCIA AND GUSTAVO GARCIA

DEFENDANT 6506 HOLLYWOOD ASSOCIATES, LP’S MOTION FOR TERMINATING SANCTIONS AS TO PLAINTIFF GUSTAVO GARCIA


DEFENDANT 6506 HOLLYWOOD ASSOCIATES, LP (“HOLLYWOOD”)’S MOTIONS TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL INTERROGATORIES (SET ONE), REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) AND MOTION TO DEEM REQUEST FOR ADMISSIONS (SET ONE) ADMITTED AS TO PLAINTIFF JUAN MANUEL GARCIA
Hollywood’s unopposed motions to compel responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) as to Plaintiff Juan Manuel Garcia are granted. (CCP §§ 2030.290 and 2031.300.) Plaintiff Juan Manuel Garcia is ordered to provide verified responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) without objections, within twenty days of notice of this order.
Furthermore, Hollywood’s motion for order establishing admissions is granted; the matters specified in Request for Admissions (Set One) are deemed admitted against Plaintiff Juan Manuel Garcia. (CCP § 2033.280.)
Plaintiff Juan Manuel Garcia is ordered to pay monetary sanctions in the amount of $1,350. The monetary sanctions are to be paid to Hollywood, by and through counsel, within twenty days of notice of this order.
CROSS-DEFENDANT ULTIMATE PROTECTION FORCE PATROL INC. (“PROTECTION”)’S MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) AS TO PLAINTIFFS JUAN GARCIA AND GUSTAVO GARCIA
Protection moves to compel Plaintiffs Juan Garcia and Gustavo Garcia (“Plaintiffs”) to provide responses to Protection’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One). Plaintiffs were served with the aforementioned discovery on May 3, 2016, and have failed to provide any responses. (Lisa R. Hsiao Decl. ¶ 2.)
Protection’s unopposed motion to compel responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) is granted. (CCP §§ 2030.290 and 2031.300.) Plaintiffs are ordered to provide verified responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) without objections, within twenty days of notice of this order.
Plaintiffs are each ordered to pay monetary sanctions in the amount of $1,360. The monetary sanctions are to be paid to Protection, by and through counsel, within twenty days of notice of this order.
HOLLYWOOD’S MOTION FOR TERMINATING SANCTIONS AS TO PLAINTIFF GUSTAVO GARCIA
Hollywood seeks terminating sanctions against Plaintiff Gustavo Garcia.
On November 9, 2016, this Court heard and granted Hollywood’s discovery motion. The Court ordered Plaintiff Gustavo Garcia to provide verified written discovery responses within twenty days of notice of the November 9, 2016, order. Hollywood served Plaintiff Gustavo Garcia with a copy of the Court’s November 9, 2016, order on November 14, 2016,
Plaintiff Gustavo Garcia has failed to provide responses to Hollywood’s discovery in conformance with the Court’s November 9, 2016, order and Plaintiff Gustavo Garcia was served with notice of this motion and failed to file any opposition. Accordingly, pursuant to CCP §§ 2023.030(d)(3) and 2023.010(g) Hollywood’s motion is granted and the action between Plaintiff Gustavo Garcia and Hollywood is dismissed. Hollywood is ordered to provide notice of this entire order.

Case Number: BC531900    Hearing Date: January 20, 2017    Dept: 53

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 53


BROWNE GEORGE ROSS LLP;

Plaintiff,


vs.


BERNS WEISS LLP, et al.,

Defendants.
Case No.: BC531900


Hearing Date: January 20, 2017


Time: 8:30 a.m.



[TENTATIVE] ORDER RE:

MOTIONS IN LIMINE
AND RELATED CROSS-COMPLAINT

Plaintiff BROWNE GEORGE ROSS LLP’S Motion in Limine No. 1 is GRANTED.

Defendants BERNS WEISS LLP and JEFFREY K. BERNS’ Motion in Limine No. 1 is GRANTED.

Defendants BERNS WEISS LLP and JEFFREY K. BERNS’ Motion in Limine No. 2 is GRANTED.

BACKGROUND

The facts are essentially undisputed. Attorney Jeffrey K. Berns (“Berns”) instituted various actions against lenders (the “TILA cases”) and brought in other counsel who were experienced in class actions to help prosecute the cases. Included among those counsel was Browne George Ross LLP (“BGR”). Twelve firms, including BGR and Berns’ firm, Berns Weiss LLP (“Berns Weiss”), executed a 2009 Global Joint Prosecution Agreement (the “2009 JPA”), which included terms for sharing the fees generated in the TILA cases.

Under the 2009 JPA, Berns was obligated to obtain written consents to the fee sharing arrangement under rule 2-200 of the California Rules of Professional Conduct (the agreement incorrectly referred to rule “2-100”). Berns did not, in fact, obtain written client consents as required by the Rules and the JPA.

Pursuant to the 2009 JPA, BGR received $2,568,519 in attorneys’ fees in connection with the TILA cases. On conclusion of the cases, BGR brought the instant action against Berns and Berns Weiss (hereafter jointly “Defendants”), alleging that it had been underpaid under the JPA. BGR first learned during Berns’ deposition in January 2015 that he had not obtained the client consents. As a result, on April 1, 2015, BGR and Defendants stipulated that there was no enforceable fee-sharing agreement among them. With leave of Court, BGR filed a second amended complaint, alleging a right to recovery under a theory of quantum meruit. The Court overruled the demurrer to the second amended complaint; Defendants answered and filed a cross-complaint alleging causes of action for (1) fraudulent inducement (material omission); (2) fraudulent inducement (material misrepresentation); (3) promissory estoppel; and (4) unjust enrichment.

The parties filed cross-motions for summary judgment or summary adjudication. On January 27, 2016, the Court granted Defendants’ motion for summary adjudication of the right to quantum meruit recovery on the unsuccessful TILA cases (there is none). On February 11, 2016, the Court granted BGR’s motion for summary judgment on Defendants’ cross-complaint.

On March 14, 2016, Defendants moved for leave to file an amended cross-complaint (hereafter “ACC”) alleging causes of action for (1) conversion; (2) common count: money had and received; and (3) common count: mistaken receipt. On April 6, 2016, the Court granted Defendants’ motion and the ACC was filed that same day. BGR then filed another motion for summary judgment asserting that the claims in the ACC failed because the failure to obtain client consents in violation of Rule 2-200 could not, as a matter of law, give rise to a right of recovery for Defendants. On August 19, 2016, the Court agreed and granted summary judgment against Defendants on the ACC. At the conclusion of the hearing on August 19, 2016, the Court ruled that the parties could bring certain motions in limine before the parties attempt to resolve their disputes in mediation.

There are now three motions in limine before the Court—one brought by BGR and two brought by Defendants.

EVIDENCE

The parties’ requests for judicial notice are granted.

BGR’S MOTION IN LIMINE NO. 1

BGR’s Motion in Limine No. 1 seeks an order precluding Defendants from offering evidence of or referring in any way to any claimed entitlement by Berns to 25% of the attorneys’ fees recovered in the TILA cases.

The evidence reflects that, in 2008, the counsel involved in the TILA cases executed a Joint Prosecution Agreement that provided a method to divide recovered attorneys’ fees. BGR was not a party to that agreement; instead BGR partner Eric George signed the agreement on behalf of Dreier Stein Kahan Browne Woods George LLP, a law firm with which BGR attorneys were affiliated. In 2009, the parties determined to revise the 2008 JPA. The 2009 JPA was executed by twelve firms, including BGR, and Berns. Both the 2008 JPA and the 2009 JPA provided that Berns would receive an off-the-top 25% cut of all attorneys’ fees recovered in the TILA cases.

Berns did not obtain client consents to the 2009 JPA, thus rendering the agreement void and unenforceable. Indeed, in connection with a stipulation allowing Plaintiff to file a second amended complaint seeking quantum meruit recovery, the parties specifically stipulated to the following facts: (1) Defendants did not obtain client consents to the 2009 JPA, and (2) No enforceable fee-sharing agreement exists between Defendants, or either of them, and BGR.

The primary argument made by BGR in support of this motion is that evidence of any supposed entitlement to receive 25% of the TILA fees is irrelevant because any claim to that amount is based on a provision found in an invalid and unenforceable fee-sharing agreement.

In Chambers v. Kay (2002) 29 Cal.4th 142, the California Supreme Court held that, absent requisite disclosure and client consent, a fee-splitting agreement between attorneys who shared work on a case but who were not partners or associates in the same firm was void and unenforceable. (Id. at 148-150.) However, an attorney who rendered services in reliance on the unenforceable fee-sharing agreement may seek quantum meruit recovery. (Id. at 161; Huskinson & Brown, LLP v. Wolf (2004) 32 Cal.4th 453, 459, 464 (“even though rule 2–200 precludes plaintiff from recovering on its fee-sharing agreement with defendants, plaintiff may nonetheless recover from defendants the reasonable value of the legal services it rendered on the client's behalf.”).)

Significantly, in Chambers, the Court held that the measure of quantum meruit recovery cannot be based on the fee negotiated in the unenforceable fee-sharing agreement: “Chambers contends that, notwithstanding the absence of the required written client consent, he should be allowed to accomplish indirectly a division of fees under the guise of a quantum meruit claim. We reject the contention. … We perceive no legal or policy justification for finding that the fee the parties negotiated without the client's consent furnishes a proper basis for a quantum meruit award in this case.” (29 Cal.4th at 162; see also Huskinson, supra, 32 Cal.4th at 458, fn.2 (recognizing the holding in Chambers that, “to the extent [quantum meruit] recovery is available, the particular fee that two attorneys negotiate without the client’s consent does not furnish a proper basis for calculating the amount of recovery.”).) Similarly, in Fergus v. Songer (2007) 150 Cal.App.4th 552, the court held that where a client exercises his statutory right to void a contingency fee agreement based on a violation of Business and Professions Code §6147, the trier of fact may not consider the contingent nature of the agreement in determining a reasonable fee. The Court stated: “The deterrent and protective purposes of section 6147 would be impaired if an attorney who was barred from enforcing a contingency fee agreement would nevertheless be entitled to a percentage of the recovery based on the contingent risk factor. The attorney would in effect be receiving a contingency fee even though the contingency fee agreement had been voided by the client.” (Id. at 573.)

Thus, Chambers, Huskinson, and Ferguson, stand for the proposition that, in determining the proper amount of quantum meruit recovery, an invalid fee-sharing agreement must be ignored and the recovery is to be calculated solely based on the reasonable value of legal services provided. In its opposition brief, Defendants fail to distinguish, or even address, any of the foregoing authority.

Defendants argue that BGR’s motion is irrelevant because BGR cannot seek recovery from the 25% of the fees recovered in the successful TILA cases that was previously paid to Berns pursuant to the void 2009 JPA. Defendants rely on Brown v. Grimes (2011) 192 Cal.App.4th 265—the case which the Court followed in granting summary judgment on Defendants’ ACC for conversion and common counts.

In Brown, two attorneys (Grimes and Brown) that were co-counsel in a series of underlying actions entered into a written fee-sharing agreement. After some of the underlying actions settled, Grimes collected attorneys’ fees from the settlements. Grimes then paid Brown a percentage of the fees as contemplated by the fee-sharing agreement. Brown believed he was entitled to more fees and sued Grimes to recover additional compensation. Grimes cross-complained against Brown for rescission of the fee-sharing agreement and to recover the money previously paid Brown. During the course of the lawsuit, it was determined that the fee-sharing agreement pursuant to which Grimes had paid Brown was invalid and void for a number of reasons including the fact that the terms of the fee-sharing agreement had not been disclosed properly to the clients as required by the applicable rules. Based on the invalidity of the fee-sharing agreement, Grimes prevailed in the trial court and Brown was ordered to return the $1.4 million he had been paid under the void agreement to Grimes, less $400,000 in quantum meruit for the value of Brown’s services.

The Court of Appeal reversed the judgment, finding that: “Under both California and Texas law, if the fee-sharing agreement is invalid under state disciplinary laws for enforcement purposes, Grimes cannot recover monies he paid to Brown.” (Id. at 285; see also id. at 285-286 (“Grimes cannot, by virtue of the illegality of his fee-sharing agreement with Brown, recover under the cross-complaint amounts already paid to Brown.”).) The Court of Appeal reached this conclusion despite the fact that “Brown will retain substantially more than he would have if he just were awarded his quantum meruit.” (Id. at 286.)

The Court of Appeal found that permitting Grimes to recover payments made to Brown under the void fee-sharing agreement ran afoul of both Texas and California rules of professional conduct. Specifically, California’s Rules of Professional Conduct provide: “These rules are not intended to create new civil causes of action. Nothing in these rules shall be deemed to create, augment, diminish, or eliminate any substantive legal duty of lawyers or the non-disciplinary consequences of violating such a duty.” (CRPC 1-100.) Thus, if an attorney were permitted to invoke the illegality of a fee-sharing agreement as a basis for reclaiming fees already paid to another attorney, this would contravene Rule 1-100—it would create a civil cause of action based on violations of the rules of professional conduct.

Contrary to Defendants’ argument, the holding in Brown does not extend to a quantum meruit claim. Whereas Defendants’ ACC sought to recover a specific sum of money paid to BGR under the void fee-sharing agreement, BGR’s quantum meruit claim seeks to recover the reasonable value of legal services rendered based on an implied promise to pay for said services. (Huskinson, supra, 32 Cal.4th at 458 (“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’”).) In Huskinson, the Court reasoned that allowing quantum meruit recovery is not tantamount to permitting a division of client fees in contravention of rule 2-200: “when based on the reasonable value of those services, such an award involves no apportionment of the fees that the client paid or has agreed to pay and therefore is not a fee division subject to rule 2–200’s client disclosure and consent requirements.” (Id. at 459.)

Because BGR is seeking to recover in quantum meruit based on Defendants’ alleged violation of an implied promise, BGR’s claims are not founded on a violation of rule 2-200. Therefore, Defendants’ attempt to invoke Brown is unavailing. Indeed, to interpret Brown as suggested by Defendants would prohibit the recovery that was expressly permitted by the California Supreme Court in Huskinson.

Defendants’ judicial estoppel argument is unavailing for the same reasons. Because Brown does not prevent BGR from seeking quantum meruit recovery, BGR has not taken inconsistent positions. (See Jackson v. Cty. of Los Angeles (1997) 60 Cal.App.4th 171, 183 (judicial estoppel applies when a party has taken two positions that are “totally inconsistent”).)

Defendants alternatively argue that the JPAs are relevant to show that BGR is improperly seeking more money than it was otherwise entitled to under the JPAs. However, case law provides that quantum meruit recovery may exceed the contract price. (B. C. Richter Contracting Co. v. Cont'l Cas. Co. (1964) 230 Cal.App.2d 491, 499-500 (“When, after partial performance, the innocent party elects to disaffirm or rescind, there is no longer any contract which conclusively fixes a limit upon his recovery; hence, it is said, he may sue upon a quantum meruit as if the special contract had never been made and may recover the reasonable value of the services performed, even though recovery exceeds the contract price.”); May v. Watt (9th Cir. 1987) 822 F.2d 896, 902 (“If a new trial is held on recission, and the quantum meruit damages are greater than those already awarded for breach of contract, May will be entitled to the additional amount.”).) The seemingly contrary case law cited by Defendants pertains to contingency fee agreements between client and counsel and reflects the concern that a client should not be required to pay more than he bargained for in a contingency fee contract. This authority does not provide that an invalid fee-sharing agreement between co-counsel provides a cap on recovery.

Defendants also argue that the JPAs are relevant to explain (1) why Berns paid BGR the amounts that he did; and (2) why Berns did not seek further client consents to the 2009 JPA. However, Defendants fail to demonstrate how either of these inquiries are at issue. Defendants have already stipulated that Berns failed to obtain client consents to the 2009 JPA and that the agreement is unenforceable. The only issue remaining for the jury is the amount of quantum meruit recovery that BGR is entitled to. Defendants’ reasons for making prior payments to BGR and for failing to obtain client consents to the 2009 JPA are irrelevant.

Based on the foregoing, the Court finds that the determination of BGR’s quantum meruit recovery cannot factor in Berns’ claimed entitlement to 25% of the fees. Accordingly, BGR’s Motion in Limine No. 1 is granted.

DEFENDANTS’ MOTION IN LIMINE NO. 1

Defendants’ Motion in Limine No. 1 seeks an order excluding all evidence regarding the lodestar incurred and services performed in any of the unsuccessful TILA cases.

As an initial matter, the Court rejects BGR’s argument that this motion should be denied on procedural grounds due to Defendants’ failure to comply with Los Angeles County Superior Court Rule 3.57. The record reflects that the parties have met and conferred extensively on the subject of this motion. At an August 19, 2016 hearing, the parties and Court agreed that this issue would be determined pursuant to a motion in limine. The parties also stipulated to the entry of an order permitting Defendants to bring this motion. Thus, the Court proceeds to the merits.

BGR was initially seeking a quantum meruit recovery for legal services performed in 37 TILA cases. Only 11 of these cases were successful, in that they generated a recovery. On March 21, 2016, the Court ruled that BGR could not seek quantum meruit recovery for any of the services it performed in the 26 unsuccessful TILA cases: “Because 26 of the 37 contingency TILA cases on which Plaintiff performed services did not generate a recovery from which counsel could seek attorneys’ fees, BGR cannot recover attorney’s fees for any of the services it performed on the 26 unsuccessful TILA cases absent written consent from the affected clients.” (3/21/16 Order.)

The Court’s March 21, 2016 ruling was premised, in part, on case law providing that a contingent fee lawyer can only obtain a quantum meruit recovery if the client successfully recovers value against which a contingent fee can be properly assessed. (See, e.g., Fracasse v. Brent (1972) 6 Cal.3d 784, 792 (“the attorney's action for reasonable compensation accrues only when the contingency stated in the original agreement has occurred—i.e., the client has had a recovery by settlement or judgment. It follows that the attorney will be denied compensation in the event such recovery is not obtained.”); Trimble v. Steinfeldt (1986) 178 Cal.App.3d 646, 651-652 (“a discharged attorney is entitled to a quantum meruit recovery for work performed on a contingency fee matter after the matter is concluded successfully.”).)

BGR argues that, where an attorney’s work in an unsuccessful case contributes to the success of another case, the attorney is entitled to be compensated for the contribution made to the successful case. However, none of the authority cited by BGR stands for this rule. BGR relies on three cases: Greeff v. Miller (C.C.S.D.N.Y. 1898) 87 F. 33; Sprague v. Ticonic Nat. Bank (1939) 307 U.S. 161; and Fergus v. Songer (2007) 150 Cal.App.4th 552.

Greeff is an 1898 case from the Southern District of New York which has no precedential value. Sprague is a United States Supreme Court case which did not concern California law and which reached its holding by invoking “the historic equity jurisdiction of the federal courts.” (307 U.S. at 164.) Moreover, Sprague is not analogous to the case at bar as it concerned a right to reimbursement under the “common fund” doctrine. The Supreme Court later explained the holding in Sprague as follows:

This Court in Sprague upheld the District Court's power to grant reimbursement for a plaintiff's litigation expenses even though she had sued only on her own behalf and not for a class, because her success would have a stare decisis effect entitling others to recover out of specific assets of the same defendant. Although those others were not parties before the court, they could be forced to contribute to the costs of the suit by an order reimbursing the plaintiff from the defendant's assets out of which their recoveries later would have to come.

(Mills v. Elec. Auto-Lite Co. (1970) 396 U.S. 375, 393.) Here, in contrast, BGR is seeking to introduce evidence of its work in unsuccessful contingency cases to support its quantum meruit claims in the successful TILA cases. Thus, Sprague is not on point.

Fergus is similarly inapposite. BGR contends that the court in Fergus permitted quantum meruit recovery for time spent on cases that resulted in no recovery. However, at no point in the court’s opinion does it expressly permit such recovery. The court merely held that, based on the evidence presented, the jury’s determination that Fergus was entitled to a fee of $1.2 million was not “against the law.” (150 Cal.App.4th at 567-569.) Fergus is also distinguishable because all of the work was performed for a single client in connection with a single goal—the enforcement of a judgment that the client had retained the attorney to enforce. Here, BGR is seeking to recover fees for work performed on behalf of clients in the unsuccessful TILA cases that are distinct from BGR’s clients in the successful TILA cases.

Another problem with BGR’s argument is that neither BGR, nor its co-counsel, obtained client consent to seek compensation for work performed in the unsuccessful TILA cases from fees that were recovered in the successful TILA cases. The Court emphasized this point in its ruling granting summary adjudication:

As established by the undisputed evidence, written consent was not obtained from any of the affected clients authorizing fees to be paid to BGR for any of the services it performed in the 26 unsuccessful TILA cases out of fees recovered from the 11 successfully resolved TILA cases, and BGR cannot establish any mutual understanding with the clients in any of the TILA cases that BGR would receive any compensation for its work in the unsuccessful TILA cases. …

Because written consent was not obtained from all affected clients authorizing fees to be paid to BGR for any of the services it performed in the 26 unsuccessful contingency TILA cases out of fees recovered from the 11 successfully resolved contingency TILA cases in compliance with California Rules of Professional Conduct 2-200 and 3-310(F), BGR cannot recover attorney’s fees for any of the services it performed in the 26 unsuccessful contingency TILA cases.

(3/21/16 Order.)

Case law is consistent with this ruling: “To recover in quantum meruit, a party … must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.’” (Chodos v. Borman (2014) 227 Cal.App.4th 76, 96.) Thus, even if the work in the unsuccessful TILA cases benefitted the successful TILA cases in some manner, to allow BGR to recover for services performed in the unsuccessful TILA cases absent client consent would be contrary to established authority and this Court’s prior ruling.

BGR also argues that it is entitled to introduce evidence related to its work on the unsuccessful TILA cases because said evidence is reflective of BGR’s experience and expertise. It is true that an attorney’s experience is a factor to be considered in determining a reasonable attorney’s fee. (See, e.g., Chodos, supra, 227 Cal.App.4th at 90.) However, the Court is not persuaded that evidence related to services performed in the unsuccessful TILA cases is necessary to establish BGR’s experience. BGR will be introducing detailed evidence related to the 11 successful TILA cases. This evidence will allow the jury to evaluate BGR’s expertise with respect to the applicable areas of law. To allow the introduction of evidence related to the 26 unsuccessful TILA cases for the limited purpose of demonstrating BGR’s experience would greatly expand the scope of trial and potentially confuse the jury. Given the limited value of this evidence, its exclusion is warranted. (See Ev. Code §352 (“the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time…”).)

Defendants’ Motion in Limine No. 1 is granted.

DEFENDANTS’ MOTION IN LIMINE NO. 2

Defendants’ Motion in Limine No. 2 seeks an order requiring that the jury’s quantum meruit analysis for each of the 11 successful TILA cases be based upon evidence of the services performed by all of the law firms that worked on the particular successful TILA case, and not just the services performed by BGR and Defendants.

Initially, BGR argues that this motion should be denied on procedural grounds because it requests the inclusion of evidence as opposed to the preclusion of evidence. However, as discussed above, the parties’ and Court agreed that this issue would be determined pursuant to a motion in limine, and the parties stipulated to the entry of an order permitting Defendants to bring this motion. Further, “[i]n limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial.” (K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc. (2009) 171 Cal.App.4th 939, 951.) The determination of which evidence is applicable to determine the method for calculating damages at trial will undoubtedly facilitate the management of this case. Therefore, the Court rejects BGR’s contention that this motion is improper.

The parties agree that Cazares v. Saenz (1989) 208 Cal.App.3d 279, provides the appropriate method for calculating damages in this case. In Cazares, the court was tasked with determining an attorney’s reasonable fee when the attorney partially performed on a contingency fee contract. The court stated:

If the trial court can determine what portion of the contract was performed, calculating the reasonable value of that partial performance becomes a relatively simple procedure.

To determine the extent of partial performance, the trial judge must calculate a fraction where the numerator is the value of the legal services rendered by the particular attorney or firm at issue and the denominator is the aggregate value of all the legal services rendered by any attorney in the case. This may be as simple as adding up the total number of hours spent by all attorneys on the matter, but it is by no means limited to “straight time.” The trial court may adjust the fraction upward or downward to account for difficulty of the work or other relevant factors.

The fraction thus calculated represents the attorney's or firm's proportionate work on the case and, if multiplied by the total fee due under the contract, should yield a reasonable approximation of the proportional fee due the attorney or firm. In effect, then, the reasonable value of the services rendered is measured by the attorney's or firm's pro rata share of the contract price.

(Id. at 288-289; see also Spires v. Am. Bus Lines (1984) 158 Cal.App.3d 211, 216 (to determine the amount of quantum meruit recovery in contingent fee litigation, the court should “use an appropriate pro rata formula which distributes the contingent fee among all discharged and existing attorneys in proportion to the time spent on the case by each.”).)

Based on a plain reading of this authority, to determine the reasonable value of the legal services performed by BGR, the jury must first determine the proportional amount of work performed in the successful TILA cases by BGR, as compared to the entirety of the work performed in those cases. This necessarily requires consideration of the services performed by all of the law firms that worked on the successful TILA cases. The jury can then consider whether the fraction should be adjusted based on factors such as the quality or difficulty of services performed. Finally, this fraction is to be multiplied by the amount of attorneys’ fees recovered in the successful TILA cases. The end result is a reasonable approximation of the reasonable proportional fees that BGR is entitled to.

BGR argues that its quantum meruit recovery must be measured according to the relative contributions of BGR and Defendants only. However, BGR cites to no authority that supports this contention. BGR’s attempts to distinguish the relevant authority is unpersuasive. As the court in Spires, supra, stated, the purpose of the quantum meruit analysis is to insure “that each attorney is compensated in accordance with work performed.” (158 Cal.App.3d at 216.) To artificially constrain the analysis to only the work performed by BGR and Defendants would not achieve this purpose.

BGR emphasizes that the fees already awarded to non-party co-counsel are not at issue. However, this does not change the fact that BGR’s quantum meruit recovery must be based on BGR’s proportionate work performed in the successful TILA cases. Further, the determination of BGR’s right to quantum meruit recovery will not operate to adjudicate any rights of the other non-party firms. Any judgment in this action will only implicate BGR’s right to quantum meruit recovery. Thus, BGR’s suggestion that this motion should be denied because the Court lacks jurisdiction over the non-party firms is unavailing.

Lastly, BGR argues that inclusion of the services performed by all of the law firms that worked on the successful TILA cases would be unnecessarily time-consuming. However, the Court cannot ignore established authority and modify the appropriate quantum meruit analysis merely to save time at trial.

Defendants’ Motion in Limine No. 2 is granted.

Defendants are ordered to provide notice of this ruling.


DATED: January 20, 2017

_____________________________
Howard L. Halm
Judge of the Superior Court

Case Number: BC542588    Hearing Date: January 23, 2017    Dept: 98

MAHNAZ HOORFAR,
Plaintiff,
vs.

CITY OF LOS ANGELES, et al.,

Defendants.

And Related Cross-Actions.

CASE NO: BC542588

[TENTATIVE] ORDER RE: CROSS-DEFENDANT’S MOTION TO BIFURCATE

Dept. 98
1:30 p.m.
January 23, 2017

Under the Personal Injury Court system, this case will be tried by a Court other than the instant Court. The trial Court rules on motions in limine and motions to bifurcate. Thus, Cross-Defendant/Cross-Complainant Tesoro Refining and Marketing Company’s (“Tesoro”) Motion to Bifurcate is denied without prejudice. Tesoro is instructed to renew its Motion with the trial judge.

Dated this 23rd day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC544184    Hearing Date: January 23, 2017    Dept: 32

JACQUELINE MASSON,
Plaintiff,
v.

MID-CENTURY INSURANCE COMPANY,

Defendants.
Case No.: BC544184

Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
PLAINTIFF’S MOTION TO STRIKE AND/OR TAX COSTS



BACKGROUND
This action arises out of a complaint filed on April 29, 2014 where Plaintiff alleged that Defendant insurance company breached its insurance contract by not covering damages to Plaintiff’s residence that were caused by construction vibrations in the street in front of her residence. Defendant denied Plaintiff’s claim based on the lack of coverage under Plaintiff’s policy.
Defendant served two Offers to Compromise, pursuant to CCP §998. Defendant first offered $25,000 on August 27, 2015. Defendant then served a second Offer to Compromise for $75,000 on July 7, 2016. Plaintiff rejected both Offers to Compromise.
After the motion was bifurcated on July 19, 2016, briefing on coverage issues was held in August 2016 and this Court issued its tentative decision on August 29, 2016. This Court then issues its Statement of Decision on September 14, 2016 after considering Plaintiff’s brief in opposition to the court’s tentative decision. Defendant prevailed on the issue of lack of coverage and judgment was entered.
On October 27, 2016, Defendant filed and served via mail its Memorandum of Costs seeking $53,260.73. The Memorandum of Costs sought $35,496.30 in expert witness fees, $11549.13 in deposition costs, $1248.30 in court-ordered transcripts, $1257.00 in filing and motions fees, $790 for service of process fees, and $2445.00 in mediation fees. Plaintiff filed this motion to tax on November 16, 2016.
On December 7, 2016, this Court filed a Judgment on Award of Costs, finding that the Plaintiff had not timely filed the motion to tax costs. However, since the cost memorandum was served via mail on October 27, 2016, the statutory time period was extended by five days as required by Code of Civil Procedure §1013. Thus Plaintiff’s November 16, 2016 motion was timely.
DISCUSSION
In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)
Expert witness fees are recoverable after a valid offer to compromise. “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” CCP §998 (c)(1).
Allowable costs under CCP §1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under §1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Ibid.) Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered.
The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC Rule 3.1700(b).) Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts.
The mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. (See Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.) However, “[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Id., at p. 699.) The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)
Unless objection is made to the entire costs bill, the motion to strike or tax must be directed to particular items in the costs memorandum and state why each is objectionable. The challenged items must be referred to in the same order as they appear in the costs memorandum. (CRC rule 3.1700(b)(2).) Unlike the costs memorandum, a motion to strike or tax need not be verified, but where the objections are based on factual matters, the motion to strike must be supported by a declaration under penalty of perjury.
A motion to strike or tax costs must be served and filed within 15 days after service of the costs memorandum. This period is extended as provided by CCP ¿1013 if the costs memorandum was served by mail. The parties may also agree in writing to extend the time period - such agreement must be filed with the court clerk specifying the extended date. Absent such an agreement, the court has the discretion to extend the deadline for up to 30 days. (CRC Rule 3.1700(b)(1).)
Expert Witness Fees ($35496.30)
Plaintiff argues that this Court should strike Defendant’s request for Expert Fees pursuant to §998 because the first offer of $25,000 was wholly unreasonable and should not be deemed a valid §998 offer. Plaintiff does not mention anything about the $75,000 offer to compromise throughout its brief since it was served after the expert witness fees were incurred (Defendant’s Opposition, Exhibit 2).
§998 (c)(1) states that expert fees must be reasonable and must include only post-offer costs. Here, Defendant was facing over $200,000 in liability and the issues related to the causation of damage to the residential property were complex. Thus, initially, the amount of expert fees incurred were reasonable.
Plaintiff cites a wrongful death case where Plaintiff sought $10 million but Defendant’s offer to compromise was for $2,500 to support the conclusion that Defendant’s $25,000 offer in a case worth $200,000 was unreasonable. However, that case is distinguishable because the offer here was about 10% of the amount sought, whereas in the cited case, the defendant’s offer was 4000 times less. Plaintiff’s argument does not consider the inherent risk of this litigation and the significant prospect of ultimately recovering nothing.
Defendant’s good faith efforts to resolve the case is further evidenced by the Second Offer to Compromise. Defendant served its second Offer to Compromise before trial, tripling the initial offer. This Court finds that both Offers to Compromise were reasonable under §998. The offers were made in good faith and were realistically reasonable under the circumstances of this particular case and at the time of the offers. In response to the $75,000 offer to compromise, Plaintiff countered with an Offer to Compromise for $225,000, which did not accurately contemplate the possibility that she would not ultimately prevail.
Defendant has submitted evidence of costs paid to four expert witnesses. As to discrepancy in the costs requested for expert witness Steve Valdez (Defended requested $6,041.25 in its memorandum but $4,893.75 in the cost worksheet), this Court finds that $6,041.25 is the correct figure because using that amount leads to the correct total expert fees requested, $35.496.30. Also, the exhibits clearly show a total charge of $6,041.25 (Defendant’s Opposition, Exhibit 6).
The motion to tax as to expert witness fees is DENIED.
Filing and Motion Fees ($1357.00)
Plaintiff has not objected to the filing and motions fees in its entirety, but takes issue with the $30.00 filing fee for its reply to Plaintiff’s opposition to its motion for summary judgment. However, this fee was incurred when Defendant used its attorney service, ASAP Legal Services, to file the Reply.
The motion to tax as to the filing and motion fees is DENIED.
Service of Process ($790.00)
Plaintiff has not objected to the service of process fees.
Deposition Costs ($11549.13)
Plaintiff objects to the Deposition fees because Defendant has not produced evidence or documentations as to how the amounts were calculated. Defendant has attached the invoices as Exhibit 10 and has now shown how the amounts were calculated.
Thus, the motion to tax deposition costs is DENIED.
Court-ordered transcripts ($1248.30)
Plaintiff has not objected to the fees for the court-ordered transcripts.
Models ($375.00)
Plaintiff has not objected to these fees.
Mediation Fees ($2445.00)
Plaintiff argues that the $2,445.00 mediation fees for the February 9, 2015 mediation should be removed because it occurred after the time of the first offer, which was on August 27, 2015. Defendant has not opposed the motion to tax as to the mediation fees.
The motion to tax as to the mediation fees is GRANTED.

Case Number: BC544887    Hearing Date: January 24, 2017    Dept: 50

Re: Bret Phillips vs Los Angeles County Sheriff’s Dept (BC544887)
Hearing January 24, 2017; Dept. 50; 8:30 a.m.

FEEDBACK FROM PROBATE THAT WILL BE ADDRESSED AT THE HEARING:

A. Notice: Unclear whether proper notice was given to the State Director for Developmental Services. There is no address listed to where the notice was sent. Appears additional 15-day notice must be properly served on DDS.

B. Bond: Petitioner states that the proposed trustee does not qualify for a bond and that there is no other person in Bret’s life who can qualify for the recommended bond. Petitioner cites to Probate Code 2628 and alleges that the requirements of PC 2628 are met. However PC 2628 allows for the waiver of future account not bond. There is nothing in PC 2628 that waives bond.

Petitioner proposes that in lieu of bond, $15,000 should be placed in an unblocked account with the balance of the trust assets in a blocked account. This would be a suitable alternative, only if Ms. Chopurian can qualify for a $17,000 bond ($15,000 plus $1,500 for cost of recovery and rounded up to the nearest thousand). If she can, then the court should order bond for $17,000 and order the balance to be placed in a blocked account with no distributions to be made absent prior court order, and set an OSC re Proof of Blocked account to be set on the same day as the OSC re Commencement of Proceedings. This is to adequately ensure that all of the trust assets are protected from possible misappropriation by the proposed trustee and that any misappropriated funds can be recovered from the bond.
If Ms. Chopurian cannot qualify for bond, then an inquiry should be made as to whether Bret’s sister and mother are willing to serve as Co-Trustees and whether they would qualify for bond. If Ms. Chopurian and/or the mother/sister cannot qualify for a $17,000 bond, all the money should be deposited in a blocked account and the Ms. Chopurian will have to seek court approval in the Probate proceeding prior to any withdrawal.

The trust has been adequately modified and can be approved once the issues regarding notice and bond have been resolved. Also, the court must make PC 3604 findings. The supplement does not address or provide additional facts to support that Bret has a disability which would satisfy PC 3604.

Case Number: BC547970    Hearing Date: January 20, 2017    Dept: 98

FRED BYERS,
Plaintiff,
vs.

MICHELLE KROK, et al.,

Defendants.


CASE NO: BC547970

[TENTATIVE] ORDER RE: PLAINTIFF FRED BYERS’ MOTION TO SEVER CROSS-COMPLAINT FROM TRIAL

Dept. 98
1:30 p.m.
January 20, 2017

On December 20, 2016, Plaintiff Fred Byers (“Plaintiff”) filed the instant Motion for an order severing the Cross-Complaint of Defendant Rainbow Pool Plastering, Inc. from the trial of his First Amended Complaint. Under the Personal Injury Court system, this case will be tried by a Court other than the instant Court. The trial Court rules on motions in limine and motions to bifurcate. Plaintiff’s Motion is similarly a motion which should be ruled on by the judge who will preside over trial in this matter. Thus, Plaintiff’s Motion is denied without prejudice. Plaintiff is instructed to renew his Motion with the trial judge.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC548044    Hearing Date: February 10, 2017    Dept: 98

GARY HAWKINS, individually and as Guardian ad Litem for BRITTNEY TATUM, et al.,
Plaintiffs,
vs.

JOSE A. GONZALEZ, et al.,

Defendants.

CASE NO: BC548044

[TENTATIVE] ORDER RE: EXPEDITED PETITION TO APPROVE COMPROMISE OF MINOR

Dept. 98
1:30 p.m.
January 10, 2017

This action arises out of alleged uninhabitable conditions at a residential apartment complex. Plaintiffs Gary Hawkins; Murlene Keeler; and Brittney Tatum, a minor, by and through her Guardian ad Litem, Gary Hawkins (“Claimant”) have agreed to settle their claims with Defendant Jose A. Gonzalez for the total amount of $17,500.00. Of the global settlement, it is proposed that $500.00 be allocated to Claimant. If approved, $125.00 of Claimant’s portion of the settlement will be used for attorney’s fees, for a remaining balance of $375.00.

Court approval is required for all settlements of a minor’s claim. Cal. Probate Code §§ 3500, 3600, et seq.; Cal. Code of Civ. Proc. § 372. The Court has reviewed the Petition and notes that several required Attachments have not been submitted.

In light of the foregoing defects, the Expedited Petition to Approve Compromise of Minor is DENIED without prejudice.

Dated this 10th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC551290    Hearing Date: January 20, 2017    Dept: 98

ALICE BOWERS, et al.,
Plaintiffs,
vs.

WILLIAM T. LONG, M.D., et al.,

Defendants.

CASE NO: BC551290

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 98
1:30 p.m.
January 20, 2017

On July 11, 2014, Plaintiffs Alice Bowers (“Ms. Bowers”) and Horace Bowers (“Mr. Bowers”) (collectively, “Plaintiffs”) filed this professional negligence and loss of consortium action for alleged damages arising out of an April 30, 2013 surgery performed on Ms. Bowers by Defendant William T. Long, M.D. (“Dr. Long”). On November 4, 2016, Defendants Bertram Fuller (“Fuller”) and Good Samaritan Hospital (“Good Samaritan”) (also named as Samaritan Surgical Clinic) (collectively, “Moving Defendants”) filed the instant Motion for Summary Judgment. As of January 17, 2017, no opposition has been filed.

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

A moving defendant in a medical malpractice action must submit a qualified expert declaration in support of his or her motion. Johnson v. Superior Court (2006) 143 Cal. App. 4th 297, 305. An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. Kastner v. Los Angeles Metro. Transit Auth. (1965) 63 Cal.2d 52, 58.

“[W]here the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care.” Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509. “Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.” Id. “When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-85 (citing Hutchinson v. United States (1988) 838 F.2d 390, 392).

Moving Defendants submit the declaration of Robert C. Klapper, M.D., a licensed physician and board certified orthopedic surgeon. Dr. Klapper has reviewed Ms. Bowers’ medical records, Dr. Long’s separately filed Motion for Summary Judgment, the declarations of Dr. Long and Daniel A. Oakes, M.D. in support of Dr. Long’s Motion, and Plaintiffs’ deposition testimony. Declaration of Robert C. Klapper, M.D., ¶ 2. On February 4, 2013, Ms. Bowers presented to Dr. Long’s office for a second opinion with a chief complaint of right knee pain and deformity. Id., ¶ 5. Dr. Long’s assessment was osteoarthritis and he planned to perform a right total knee arthroplasty with computer navigation. Id. Dr. Long’s notes reflect that he discussed the risk of surgery, including those of anesthesia, the risk of the operation itself, and the risk of blood transfusions, with Ms. Bowers. Id. No records suggest that Fuller, a physician’s assistant, was involved in the informed consent discussion on February 4, 2013 or at any time prior to surgery. Id., ¶ 6. On April 30, 2013, Ms. Bowers was admitted to Good Samaritan Hospital and Dr. Long performed a right total knee arthroplasty. Id., ¶ 11. No records suggest that Fuller participated in the surgery. Id.

Dr. Klapper notes that Plaintiffs claim that Dr. Long and Fuller failed to inform Ms. Bowers of the risk of a foot drop in connection with total knee arthroplasty. Id., ¶ 29(a). He concludes that the care and treatment rendered to Ms. Bowers by Moving Defendants complied with the applicable standard of care, as it was not Fuller’s role to advise the patient of the risks of surgery. Id., ¶ 29(b). Dr. Klapper further concludes that, to a reasonable degree of medical probability, nothing Fuller or Good Samaritan did or failed to do caused or contributed to Ms. Bowers’ injuries. Id., ¶¶ 29(l), 33.

Moving Defendants contend that Dr. Klapper’s declaration shows that no act or omission on the part of Fuller caused or contributed to Ms. Bowers’ injuries and that Fuller is entitled to summary judgment as a matter of law. Good Samaritan, Fuller’s employer, contends that it is also entitled to summary judgment, contending that its only exposure to liability is based upon Fuller’s actions. Lastly, Moving Defendants assert that Mr. Bowers’ claim for loss of consortium is entirely derivative from Ms. Bowers’ injuries and also fails.

The Court finds that Moving Defendants have carried their burden to show that there are no triable issues of material fact and they are entitled to summary judgment as a matter of law. The burden was therefore shifted to Plaintiffs to make a showing of a triable issue of material fact. As Plaintiffs have not opposed the Motion, Plaintiffs have failed to meet their burden.

In light of the foregoing, Moving Defendants’ Motion for Summary Judgment is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC552021    Hearing Date: January 20, 2017    Dept: 92

HADI HILLO,
Plaintiff(s),

vs.

RANDALL HAYES ASSOCIATES, INC., ET AL.,
Defendant(s).

Case No.: BC552021

ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT

DEPARTMENT 92 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS:
Complicated based upon either the number of pretrial hearings or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:
Transferred for all purposes to Judge Melvin Sandvig in Dept. F-47 of the North Valley (Chatsworth) District.

Any pending motions or hearings, including trial or status conference, will be reset, continued or vacated at the direction of the newly assigned IC court.

Plaintiff shall give notice of the Transfer Order.

Case Number: BC559952    Hearing Date: January 20, 2017    Dept: 97

31

JESUS VILLANEDA,
Plaintiff,
v.

TIFFANY ASHLEY BRIONES MORENO, et al.,
Defendants.
Case No.: BC559952

Hearing Date: January 20, 2017

[TENTATIVE] ORDER RE:
DEMURRER AND MOTION TO STRIKE BY DEFENDANT JUNIOR DRAKE, INC.

BACKGROUND
This action arises out of an alleged vehicle vs. bicycle collision. Plaintiff asserts causes of action for Negligence, General Negligence, and Intentional Tort against Defendant Junior Drake, Inc. (“Defendant”). Defendant was named as Doe 1 on September 30, 2016.
Demurrer
Defendant demurs to Plaintiff’s Complaint on the grounds that Plaintiff’s Complaint fails to allege any facts regarding Defendant’s liability. However, the Court finds that Defendant’s assertion is incorrect. Plaintiff’s form Complaint alleges that Defendant was the defendant who employed the persons who operated the vehicle in the course of their employment, Defendant owned the vehicle which was operated with its permission, Defendant entrusted the vehicle, and Defendant Tiffany Moreno was the agent and employee of Defendant. Thus, Plaintiff’s allegations are sufficient to support Plaintiff’s causes of action for Negligence and General Negligence against Defendant.
With respect to Plaintiff’s cause of action for Intentional Tort, the Court finds that the facts alleged against Defendant cannot support a cause of action for Intentional Tort because Defendant is a corporation and a corporation cannot negligently and recklessly operate a vehicle.
Based on the foregoing, Defendant’s demurrer is sustained with respect to Plaintiff’s cause of action for Intentional Tort against Defendant but is overruled with respect to Plaintiff’s other causes of action.
Motion to Strike
The court may strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)
Civil Code § 3294 requires that in the case of an employer, the act for which punitive damages is being plead, “must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code § 3294(b).) Thus, when a corporate defendant is accused of committing intentional torts through an employee, punitive damages are not appropriate unless the employee is authorized to make policy for the corporation. (Civil Code § 3294; Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 167-8.)
The Court finds that Plaintiff has failed to allege that an officer, director, or managing agent of Defendant acted in a way to warrant the imposition of punitive damages. In fact, Plaintiff’s exemplary damages statement makes no mention of Doe Defendants and is specifically pled with respect to Plaintiff Tiffany Moreno.
For the above mentioned reason, Defendant’s motion to strike is granted.
CONCLUSION AND ORDER
Defendant’s demurrer is sustained with respect to Plaintiff’s cause of action for Intentional Tort and is overruled with regard to Plaintiff’s other causes of action.
Defendant’s motion to strike is granted as prayed. Plaintiff is directed to amend her pleading so that it is clearly alleges that Plaintiff is not seeking punitive damages against Defendant.
At the hearing, Plaintiff is allowed make an offer of proof as to how the Complaint could be successfully amended in order to state a viable claim for punitive damages and Intentional Tort. If the Court determines that Plaintiff cannot amend her Complaint to state a viable claim for punitive damages and Intentional Tort, Defendant’s motion will be granted with prejudice.
Defendant is ordered to give notice.

Case Number: BC560030    Hearing Date: January 20, 2017    Dept: NCE

Ngom v. Cyrus
BC560030

Motion of defendant 10609 Bloomfield, Inc. for a protective order limiting discovery is granted in part.

As to Demand No. 1: “All communications between Travelers Indemnity Company of Connecticut or its agents and 10609 Bloomfield, Inc. regarding any insurance policies that were in place on November 6, 2012:
Defendant has failed to establish that communications between defendant and its insurer which predated the assumption of defendant’s defense in this matter would be subject to privilege. See Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1083 (“When an insurer retains counsel to defend its insured, a tripartite attorney-client relationship arises among the insurer, insured, and counsel.”) Defendant is ordered to provide a written response to this demand which identifies any documents prior to that date which fall within the discovery concerning insurance which is permitted under CCP § 2017.210 (“A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse or payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement’s coverage of the claim involved in the action, but not as to the nature and substance of that dispute. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.”) Proper objections must also be asserted in that response and the documents must be provided for inspection and copying within 20 days.

As to Demand No. 3 “all communications between Long & Dellis and Travelers Indemnity Company of Connecticut regarding the amount of insurance coverage in this case” and Demand No. 4 “All communicaitons between Long & Dellis and 10609 Bloomfield, Inc. transmitting insurance policies in this case:
The motion is granted. These categories expressly seek documents presumptively subject to attorney-client privilege. See Evidence Code § 954 (a client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer ...”); Evidence Code § 917(a) (“Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client ... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof of establishing that the communication was not confidential.”)

The court further finds that the privilege has not been waived. Under Evidence Code § 912, an attorney-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” The scope of a waiver “is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.” Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047.

In Southern California Gas Co. v. Public Utilities Commission (1990) 50 Cal.3d 31, 40-41, the Supreme Court explained that in Mitchell v. Superior Court (1984) 37 Cal.3d 591, 609, it held that waiver can be demonstrated by showing that the client has put the privileged communication “directly at issue and that the disclosure is essential for a fair adjudication of the action,” but that there is no “waiver of the attorney-client privilege where the substance of the protected communication is not itself tendered in issue, but instead simply represents one of several forms of indirect evidence in the matter.” It found that the issue in that case was the enforceability and value of the contract and the reasonable value of a buy-out, and that “because its attorneys’ advice or state of mind is not in issue, it [had] not impliedly waived its attorney-client privilege.” Southern California Gas Co., 50 Cal.3d at 42. The court also noted the Commission had not presented evidence to indicate that the information claimed to be privileged was “vital to a fair adjudication” in the proceeding as the counsel’s evaluation of whether the contract was enforceable was not the only way to determine enforceability.

Here, at best, counsel’s declaration could be deemed a waiver only of communications supporting counsel’s statement that in March of 2016, when preparing the original responses to interrogatories, he did not ask the Association about excess insurance and of evidence that in early August 2016, an investigation was undertaken to determine if there was excess coverage and the existence of such coverage was established. [Ex. 5, Delis Decl., ¶¶ 14, 16, 23.] However, coverage has now been established by the production of the policies and it has not been established that the content of any privileged communication on these issues is vital to a fair adjudication of any other specific material issue.

Sanctions requested by both sides are denied. The court finds that each side was substantially justified in taking their respective positions in the matter, given that the discovery was propounded prior to the hearing on the motion to deem interrogatory responses binding.

In any future discovery motion concerning the content of a discovery request, such as this motion, a separate statement must be filed which complies with CRC Rule 3.1345.

Case Number: BC561231    Hearing Date: January 20, 2017    Dept: 98

JOHN FONG, et al.,
Plaintiffs,
vs.

ROBERT PRECIUTTI, et al.,

Defendants.

CASE NO: BC561231

[TENTATIVE] ORDER RE: EXPEDITED PETITION TO APPROVE COMPROMISE OF MINOR

Dept. 98
1:30 p.m.
January 23, 2017

This action arises out of a December 12, 2012 vehicle collision. Plaintiff Caleb Fong (“Claimant”) has agreed to settle his claims with Defendant Robert Preciutti for the total amount of $8,000.00. If approved, $762.55 will be used for medical expenses and $1,769.60 for attorney’s fees, for a remaining balance of $5,467.85. The remaining balance will be deposited in an insured account, subject to withdrawal only upon the authorization of the court.

Court approval is required for all settlements of a minor’s claim. Cal. Probate Code §§ 3500, 3600, et seq.; Cal. Code of Civ. Proc. § 372. The Court has reviewed the Petition and finds the settlement to be fair and reasonable. The Court further finds the requested attorney’s fee, which amounts to less than 25% of Claimant’s settlement, to be fair and reasonable.


In light of the foregoing, the Expedited Petition to Approve Compromise of Minor is GRANTED.

Dated this 23rd day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC561812    Hearing Date: January 20, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

PATRICK HALLETT, et al.;

Plaintiffs,

vs.

ANDY KHAU, et al.;

Defendants. Case No.: BC561812

Hearing Date: January 20, 2017


[TENTATIVE] RULING RE:

DEFENDANTS PATRICK HALLETT AND 729 MERCHANT, LLC’S MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR NEW TRIAL.


Defendants Patrick Hallett and 729 Merchant, LLC’s Motions for Judgment Notwithstanding the Verdict and Motion for New Trial are DENIED.
FACTUAL BACKGROUND

This case involves plaintiff’s purchase of a warehouse that was smaller than advertised. The facts are set forth in more detail in this court’s prior rulings.

PROCEDURAL HISTORY

Hallett filed his original complaint on October 24, 2014, alleging five causes of action:
1. BREACH OF FIDUCIARY DUTY
2. NEGLIGENCE
3. NEGLIGENT MISREPRESENTATION
4. BREACH OF CONTRACT;
5. FRAUD AND DECEIT.

On October 15, 2015, this court allowed Hallett to file a First Amended Complaint (“FAC”) to add BDO and its employees and officers Joshua Pak (“Pak”) and Paul Baik (“Baik”) as defendants.

On March 7, 2016, Hallett filed his Second Amended Complaint (“SAC”) alleging the following causes of action:

1. BREACH OF FIDUCIARY DUTY
2. NEGLIGENCE
3. NEGLIGENT MISREPRESENTATION
4. BREACH OF CONTRACT;
5. FRAUD AND DECEIT.

On February 5, 2016, this court granted an application for determination of good faith settlement as to defendants Ahn and Magic Properties, Inc.

On March 30, 2016, this court granted a motion for summary judgment by defendants McCoy, Reynolds, Montgomery, and Vanguard Realty Advisors, LLC.

On June 27, 2016, this court denied Jae Jan Lee’s Motion for Summary Judgment.

On August 15, 2016, defendants BDO, Pak, and Baik filed a Notice of Settlement and Application for Good Faith Determination. The court granted this motion on September 9, 2016.

Trial was held, and on October 18, 2016, the jury returned a verdict in favor of Hallett in the total amount of $425,000, representing the difference between what Hallett paid for the property and its fair market value at the time, and $56,000 in additional damages. (See Special Verdict Form, at p. 12.)

On December 7, 2016, this court entered an order awarding $86,801.28 in prejudgment interest to Hallett. Notice of Entry of Judgment was filed on December 8, 2016.

On December 9, 2016, Khau filed an ex parte application for a stay of enforcement of judgment. This court continued the hearing until December 20, 2016, and allowed supplemental briefing. On December 20, 2016, this court granted Khau’s application for a stay until it rules on his post-trial motions or until its jurisdiction to do so ends on February 10, 2016, whichever is earlier.

Khau filed his Motion for Judgment Notwithstanding the Verdict and Motion for New Trial on January 3, 2017. Hallett filed his Oppositions on January 13, 2017. Khau filed his Replies on January 18, 2017.

DISCUSSION

I. OBJECTIONS

Hallett’s Objection re: JNOV
• Objections Nos. 1–10 are OVERRULED. However, the court will only consider the contents of the exhibits, not the attorney’s description of the exhibits.
• Objection No. 10 is SUSTAINED.

Hallett’s Objections re: Motion for New Trial
• Objections Nos. 1–12 are OVERRULED. However, the court will only consider the contents of the exhibits, not the attorney’s description of the exhibits.
• Objection No. 13 is SUSTAINED.

II. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

“The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., § 629, subd. (a).)

“A trial court must grant a motion for JNOV whenever a motion for a directed verdict for the aggrieved party should have been granted. [Citation.] ‘“‘[T]he power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit.’ [Citation.] ‘A motion for a directed verdict “is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom.”'”’ [Citation.]” (Santos v. Kisco Senior Living, LLC (Cal. Ct. App. 2016) 205 Cal.Rptr.3d 585, 591.)

“The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [Citations] or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’ [Citation.]” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

A. TIMELINESS

Hallett first argues that the Motion for JNOV is untimely. (Opposition at p. 2.)

Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits.

The moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.

(Code Civ. Proc., § 659a.)

Khau’s Notice of Intent to file the post-trial motions was served on December 21, 2016, ten days after which was December 31, 2016.

However, “[t]he time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc., § 12.) “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, ‘holiday’ means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.” (Code Civ. Proc., § 12a.)

December 31, 2016 was a Saturday, and the following Monday, January 2, 2017, was a court holiday. Accordingly, the motions were timely followed on the first non-holiday after December 31, 2016, that is, January 3, 2017.

B. SUFFICIENCY OF EVIDENCE REGARDING RELIANCE

Khau argues that there is no substantial evidence that Hallett reasonably relied upon Khau’s or his agent’s Ahn’s representations regarding the square footage of the warehouse. (JNOV at pp. 4–10.)

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“The elements of negligent misrepresentation, a form of deceit, are misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.” (Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1285.)

“‘Actual reliance occurs when a misrepresentation is “‘an immediate cause of [a plaintiff's] conduct, which alters his legal relations,’” and when, absent such representation, “‘he would not, in all reasonable probability, have entered into the contract or other transaction.’” [Citations.] “It is not . . . necessary that [a plaintiff's] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct . . . . It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.” [Citation.]’ ‘“Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a question of fact.” [Citations.]’ [Citation.]” (Whiteley v. Philip Morris Inc. (“Whiteley”) (2004) 117 Cal.App.4th 635, 678.)

Khau points to numerous pieces of evidence introduced at trial that show that Hallett relied on information other than that provided to him by Khau in determining to purchase the warehouse. For example, Khau points to the fact that Hallett relied on his own independent due diligence, including the Vanguard appraisal of the property (Malik Decl. Ex. 7), the representations of his agent Lee (Malik Decl ¶ 11), a physical inspection of the property by an inspection company Hallett hired (Malik Decl. ¶ 17), and his own inspection of the property, including measurements taken by Hallett on three occasions. (Malik Decl. ¶ 9; JNOV at p. 5.)

However, regardless of the existence of evidence that Hallett relied in part on other representations and his own investigation, there is substantial evidence that Hallett did actually and reasonably rely on Khau and his agent’s representations in making his decision to purchase the warehouse.

Hallett testified that he saw the listing agreement that stated that the Property was 8,450 square feet, and that this figure was significant to him. (Kuehl Decl. Ex. 2, 62:3–63:25.) Hallett also reviewed the Property Information Sheet signed by Khau that referred to the building as having 8,450 square feet. (Id. 71:5–72:15.)

Critically, when asked if he would have looked at the property any further had the flier provided by Khau listed the property correctly at 7,490 square feet as opposed to 8,450 square foot, Hallett responded “No,” clarifying that “the other properties for sale around the 7,500 size, the 6,000 square foot size, that wouldn’t do for us.” (Kuehl Decl. Ex. 2, 66:11–20.)
While Hallett did independently inspect the property before purchasing it, there is evidence on the record that he was unable to accurately determine the square footage. (Kuehl Decl. Ex. 2, 98:16–100:9.) In addition, at the time of his measurements, there were large coolers in the space. (Id. 98:19-23; 65:1-9.) Hallett testified that even after measuring the room three times, he could not get an accurate measurement because he did not have experience in measuring property, he had only a 25-foot tape measure, and he had no doubt at that time that the actual warehouse was 8,450 square feet. (Id 98:12-100:4.)
Hallett testified:

We had the appraisal that had confirmed based on their measurements. I don’t have any experience in measuring property, and I was limited to a 25-foot tape measure, and the rooms are significantly larger than that. So it was extend[ed] 25 feet, extend here, so on and so forth, but there were significant obstructions, and we just couldn’t get an accurate reading.

(Id. 99:25-100:4.)

Hallett testified further that “at no point did I believe that the property was smaller than what was represented.” (Id., 100:8–9.)

As stated above, the issue of reliance is a question of fact, and there is substantial evidence that the representations played a significant role in influencing the decision at issue. The jury determined that Hallett actually and reasonably relied on Khau’s representations. Because there is substantial evidence on the record that Hallett relied on the representation of the size of the warehouse provided by Khau in deciding to purchase the warehouse, the court rejects Khau’s arguments relating to reliance.

Khau also argues that Hallett had in his possession documents that indicated the correct square footage of the property, specifically, the Environmental Report. (JNOV at pp. 9–10; Malik Decl. Ex. 19.) However, at trial, Hallett testified that he did not read the environmental report or the one page summary to the report. (JNOV at p. 9; Malik Decl. ¶ 21.) Further, Hallett testified that it was not necessary for him to read the report “because the environmental report was acceptable.” (Malik Decl., Ex. 21 166:3-6.) The jury determined that even though Hallett may have been in receipt of the Environmental Report, his reliance on Khau’s representations remained reasonable because he did not actually read that report. Further, as noted above, Hallett testified that he did not read through the over 400-page report because once he determined that there were no environmental problems, there was no necessity to read it, which supported the reasonableness of his failure to read through the report.

In his Reply, Khau argues that, as a matter of law, Hallett’s conduct in independently investigating the Property “nullified” Khau’s representations. (Reply at pp. 2–4.) Khau cites to no cases supporting this “nullification” argument. As discussed above, there is substantial evidence on the record that despite Hallett’s attempts to ascertain the exact square footage of the warehouse, he never obtained accurate measurements, and instead substantially and reasonably relied on Khau’s representations as to its size.

C. ASSERTION OF WAIVER AS A DEFENSE TO BREACH OF CONTRACT CLAIM

Khau argues that this court’s finding that the jury could not consider the waiver provisions with respect to the breach of contract claim was prejudicial. (JNOV at pp. 10–11.)

Khau cites to no law regarding this argument. As noted by this court before in previous ruling and during trial, “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code, § 1668.)

This court did not bar the consideration of the waiver provisions entirely, but rather issued jury instructions allowing the jury to consider the waiver only if they did not find Khau liable for fraud. (Kuehl Decl. Ex. 2 20:8–21, 115:13–117:7.) The jury did find Khau liable for fraud, and therefore properly ignored the waiver provisions.

In his Reply, Khau repeats his argument that the waiver provision would provide him a defense as to the breach of contract cause of action as a matter of law, but does not advance any specific arguments or case law supporting that conclusion. (Reply at pp. 3–4.)

D. INCONSISTENCY OF JURY FINDINGS

Khau argues that the jury’s findings as to the intentional misrepresentation and negligent misrepresentation causes of action are inconsistent.
On the special verdict form VF1903 on negligent misrepresentation, the jury checked “yes” in response to “Did Andy Khau honestly believe that the representation was true when he made it?” (Malik Decl. ¶ 2, ¶ 29, Ex. 2.) In response to the special verdict form VF1900 for intentional misrepresentation, the jury also checked “yes” in response to “Did Andy Khau know that the representation was false, or did he make the representation recklessly and without regard for its truth?” (Ibid.)

“General and special verdicts are deemed inconsistent when they are ‘beyond possibility of reconciliation under any possible application of the evidence and instructions.’ [Citation.] ‘If any conclusions could be drawn thereunder which would explain the apparent conflict, the jury will be deemed to have drawn them.’ [Citation.]” (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 716.)

These two findings are not inconsistent. The jury could find that Khau “honestly” believed that the representation regarding the square footage was true, but that he could have made that representation recklessly and without regard for its truth.
Khau argues that if the jury found that he was “honest,” then “the integrity of his actions precludes any finding of intentional misrepresentation.” (JNOV at p. 11.) Khau cites to no law requiring such a strict definition of “honest,” and the question asked with respect to intentional misrepresentation allows a finding by the jury where the defendant did not know the representation was false.

In this case, it is equally valid to interpret the meaning of “honest” in this context as “in fact.” Therefore, the jury found that Khau in fact believed the square footage to be true. That finding is not inconsistent with a finding that he nevertheless made the representation about the warehouse’s square footage recklessly and without regard for its truth.
Because there is a reasonable conclusion that reconciles the apparent conflict, this court must find that the jury drew those conclusions.

Khau argues in his Reply that with respect to the same misrepresentation, question two to the Judicial Council of California Civil Jury Instruction VF-1900 for intentional misrepresentation cannot be answered “yes” while question 3 of VF-1903 is answered “no.”

Under the “Directions for Use” at page 1122–1123 of the Judicial Council of California Civil Jury Instructions, it does state that “[w]ith respect to the same misrepresentation, question 2 above cannot be answered ‘yes’ and question 3 of VF-1903 cannot also be answered ‘no.’ The jury may continue to answer the next question from one form or the other, but not both.” Question 2 of VF-1900 asks if the defendant knew “that the representation was false” or if he made “the representation recklessly and without regard for its truth. Question 3 of VF-1903 asks if the defendant “had reasonable grounds for believing the representation was true when” he made it.”

While the Judicial Council notes regarding these jury instructions support Khau’s position, Khau has cited to no binding authority holding that this jury’s findings in this case are in fact inconsistent. As mentioned above, because intentional misrepresentation is possible even if the defendant did not know that the representation was false, it is possible for a jury to find that while Khau may have “honestly” believed that the square footage was what was represented, he did not have reasonable grounds for that belief, and made the representation recklessly.
Courts have held that “‘[w]here the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’ [Citation.]” (Bily v. Arthur Young & Co. (“Bily”) (1992) 3 Cal.4th 370, 407.) The court notes that the Judicial Council cites to Bily in its notes regarding VF-1900.

The court in Bily, in analyzing intentional misrepresentation, also recognized that “actual knowledge of the false or baseless character of its opinion is not required: ‘If the defendant has no belief in the truth of the statement, and makes it recklessly, without knowing whether it is true or false, the element of scienter is satisfied.’ [Citation.]” (Bily, supra, 3 Cal.4th at p. 415.)

Accordingly, Khau can be liable for both negligent and intentional misrepresentations if he did not know the representation was false as long as he had no reasonable ground for the belief (negligent misrepresentation) or made the statement recklessly without regard for the truth (intentional misrepresentation). The court finds that there is no irreconcilable inconsistency with the jury’s findings.
Khau’s Motion for Judgment Notwithstanding the Verdict is DENIED.

III. MOTION FOR NEW TRIAL

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)
“When the ground relied upon is insufficiency of the evidence, the court must briefly state why it finds the evidence legally inadequate. In other words, the ‘order must briefly identify the portion of the record which convinces the judge “that the court or jury clearly should have reached a different verdict or decision.” [Fn. omitted.]’ [Citations.] In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there be sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence is against the verdict.” (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923.)

Here, Khau makes all of the same arguments in his motion for a new trial as he does in his motion for judgment notwithstanding the verdict. The court incorporates its findings above with respect to substantial evidence to support the jury’s verdict, and finds that none of Khau’s arguments support a new trial for the same reasons as set forth above.

Khau’s Motion for a New Trial is DENIED.

Plaintiff to give notice.

DATED: January 20, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

Case Number: BC562901    Hearing Date: January 23, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

DEUTSCHE BANK NATIONAL TRUST COMPANY, et al.;

Plaintiffs,

vs.

RADKA KROUL, et al.;

Defendants. Case No.: BC 562901

Hearing Date: January 23, 2017


[TENTATIVE] RULING RE:

DEFENDANT RADKA AND JOSEF KROULS’ MOTION TO VACATE JUDGMENT

Defendants Radka and Josef Krouls’ Motion to Vacate Judgment is DENIED.

FACTUAL BACKGROUND

This is a slander of title case regarding two parcels of land commonly known as 901 Isabel Street, Los Angeles, 90065. (Complaint ¶ 2.) Plaintiff Deutsche Bank National Trust Company (“Deutsche Bank”) alleges that defendant Radka Kroul (“Radka”) purchased the property on February 15, 2005 by borrowing $900,000 from Washington Mutual Bank, FA. (Complaint
¶ 15.) Radka subsequently took out four additional loans secured by the property. (Complaint
¶¶ 16–19.) Radka defaulted on the first and second mortgages in September 2007. (Complaint
¶¶ 21, 22.)

On September 25, 2008, JP Morgan Chase Bank, N.A. purchased WaMu, and subsequently assigned all of its interests in the underlying first mortgage on the property to Deutsche Bank. (Complaint ¶ 27.) A Notice of Trustee’s Sale was filed on June 30, 2010, and on May 9, 2011 the Property was foreclosed upon at the foreclosure sale. (Complaint ¶¶ 29–31.)

Radka subsequently filed for bankruptcy. (Complaint ¶¶ 32–35.) On May 17, 2012, Deutsche Bank filed an unlawful detainer against Radka. (Complaint ¶¶ 36–38.) Deutsche bank obtained judgment in its favor on January 22, 2013. (Complaint ¶ 37.) On March 20, 2013, the property was vacated and locks changed. (Id. ¶ 38.)

On March 28, 2013, Radka and Josef (collectively, the “Krouls”) and other defendants allegedly recorded a “Notice of Rescission of Trustee’s Deed Upon Sale.” (Complaint ¶ 39.) On March 25, 2013, when Deutsche Bank’s agents went to the property, they found that Radka had re-entered the property and changed the locks. (Complaint ¶ 43.) On March 28, 2013, Deutsche Bank dispatched a police car to remove Radka, but Radka used the improper Notice of Rescission to claim he was the rightful owner. (Complaint ¶¶ 44–49.)

PROCEDURAL HISTORY

Deutsche Bank filed its Complaint on November 4, 2014 alleging five causes of action:

1. SLANDER OF TITLE
2. SLANDER OF TITLE
3. CANCELLATION OF INSTRUMENT
4. DECLARATORY RELIEF
5. INJUNCTIVE RELIEF

On February 25, 2016, Deutsche Bank made an ex parte application to compel the depositions of Radka and Josef Kroul, and the production of documents at deposition. The court set a hearing for the motion for March 30, 2016, and ordered Deutsche Bank to meet and confer with Radka and Josef Kroul regarding the setting of their depositions. Deutsche Bank re-filed and served its ex parte application as a Motion on March 4, 2016.

On March 30, 2016, this court granted Deutsche Bank’s motion to compel the deposition of Radka and Josef Kroul.

On April 18, 2016, this court signed a Stipulated Judgment between Deutsche Bank and the Krouls. This Stipulated Judgment cancelled the March 28, 2013 “Notice of Rescission of Trustee’s Deed Upon Sale” at the center of this action, and provided that the May 16, 2011 Trustee’s Deed Upon Sale is valid.
The Krouls stipulated that they had no rights or interest in the property.

Judgment against the Krouls was entered on June 3, 2016. All other defendants have either had judgment entered against them or have been dismissed.
On October 7, 2016, The Krouls made an ex parte application for an order shortening time for a hearing on a Motion to Vacate Judgment. The court denied this ex parte application.

The Krouls filed their Motion to Vacate Judgment on October 18, 2016. Deutsche Bank filed its Opposition on January 9, 2017. No Reply has been filed.


DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Deutsche Bank requests that this court take judicial notice of a series of documents recorded in the Los Angeles County Recorder’s Office relating to the property at issue. The court GRANTS this request.

II. OBJECTIONS

Deutsche Bank’s Objections
• Objection No. 1 is OVERRULED.
• Objections Nos. 2–3 are SUSTAINED.
• Objection No. 4 is OVERRULED.
• Objection No. 5 is SUSTAINED.

III. MOTION TO VACATE JUDGMENT

Civil Code of Procedure section 473, subdivision (b) states:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Section 473 “should be liberally construed and applied so that one who has a meritorious case should be given an opportunity to present it . . . .” (Sousa v. Capital Co. (1963) 220 Cal.App.2d 744, 756.)
The Krouls’ Motion to Vacate contains a lengthy discussion of claimed improprieties regarding the chain of title of the subject property and the relevant instruments secured by the property.
However, Radka Kroul’s request for this court to set aside the entry of judgment may only properly be based on a mistake, inadvertence, surprise, or excusable neglect that led him to sign the Stipulated Judgment, and not on the prior history relating to the Deed of Trust.

Radka Kroul states in his declaration that during the discussion leading to the Stipulated Judgment, Deutsche Bank’s attorney David Liu (“Liu”) represented to Radka that he could negotiate to purchase the property back for $500,000, and that he signed the Stipulated Judgment based on that representation. (Kroul Decl. ¶¶ 48, 49.) The Krouls have not submitted a declaration from defendant Josef Kroul.
After signing the Stipulated Judgment, Radka contacted Deutsche Bank to negotiate the sale, but was told that Deutsche Bank was not the owner of the property, but only the Trustee of the Note, and that the actual owner was Chase Bank. (Kroul Decl. ¶ 51.) Radka states that this fact is demonstrated in a May 19, 2016 email from a Deutsche Bank property administrator to Radka Kroul stating that “Deutsche Bank is just the Trustee and we only hold the Note for the Investor.” (Kroul Decl. ¶ 54.) Radka states he attaches this email as Exhibit G, but there is no Exhibit G attached to his declaration.

Radka Kroul does not attach the alleged email referred in his declaration, and the court has sustained Deutsche Bank’s objection to the portion of his declaration describing is contents. Kroul’s motion to vacate is therefore only supported by his contention in his declaration that Liu told him he could repurchase the property for $500,000.

None of the above reasons show any mistake, inadvertence, surprise, or excusable neglect. At the most, the Krouls appear to argue that Radka signed the Stipulated Judgment based on the false promise that he would be able to repurchase the property for $500,000, and that he was surprised to discover that Deutsche Bank was only the Trustee of the Note, not the owner.
“‘Surprise’ referred to in the provision of [section 473] is ‘some condition or situation in which a party to cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ [Citation.]” (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.)
“‘[A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed. In other words, a burden is imposed upon the party seeking relief to show why he is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]’ [Citations.] In a motion under section 473 the initial burden is on the moving party to prove excusable neglect by a preponderance of the evidence.’ [Citation.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623–634.)
Here, Kroul has failed to show by a preponderance of the evidence that he entered into the stipulation by surprise because of Liu’s alleged promise to allow Kroul to buy back the property for $500,000. As argued by Deutsche Bank, if this buy-back were a part of the Stipulated Judgment, it should have been included in the Stipulated Judgment in writing. (Opposition at pp. 8–9.)

Any promise made by Deutsche Bank’s agents with respect to the Stipulated Judgment regarding the purchase of real property would be subject to the statute of frauds. An agreement “for the sale of real property, or of an interest therein” must be in writing to be valid. (Civ. Code, § 1624, subd. (a)(3).) Therefore, any alleged agreement to allow Kroul to purchase the property for $500,000 would have to be in writing.

Additionally, Liu has filed a declaration stating that he “never represented to Radka Kroul or to Josef Kroul that Plaintiff agreed or would agree to sell the Property to Radka Kroul at any time or for any price.” (Liu Decl. ¶ 6.)

Radka Kroul voluntarily entered into the Stipulated Judgment in which he rescinded the March 28, 2013 “Notice of Rescission of Trustee’s Deed Upon Sale” at the center of this action, and agreed that the May 16, 2011 Trustee’s Deed Upon Sale was valid. Radka Kroul also stipulated that he had no rights or interest in the property. In exchange, Deutsche Bank granted a waiver of costs, fees, and damages.
The Motion to Vacate is also not code compliant. Section 473 subdivision (b) provides: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Courts have held that where a defendant “failed to submit his proposed answer within that period, the trial court correctly determined that it was without jurisdiction to grant relief.” (Puryear v. Stanley (1985) 172 Cal.App.3d 291, 295.)

Here, the Krouls have not attached an Answer or any other responsive pleading to the Complaint with the Motion to Vacate. Accordingly, this court lacks jurisdiction to grant relief.

The Krouls have failed to meet their burden to show by a preponderance of the evidence that they entered into the Stipulated Judgment because of a mistake, inadvertence, surprise, or excusable neglect. The Motion to Vacate is DENIED.

FOOTNOTES:

1 The court refers to Radka by his first name to avoid confusion between Radka and Josef Kroul.
2 Even if Radka could produce an email that states that Deutsche Bank is the Trustee, this would not provide a basis for vacating the Stipulated Judgment under section 473 based on mistake, excusable neglect or surprise on the part of Radka.


Plaintiff to give notice.

DATED: January 23, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

Case Number: BC563262    Hearing Date: January 25, 2017    Dept: 32

JOSE HERNANDEZ,
Plaintiff,
vs.
MATTARE ENTERPRISE, INC., a California Corporation dba DESERT EXPRESS; and DOES 1 to 50, Inclusive,
Defendants. )
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)
)
)
)
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))))))) Case No.: BC 563262


[TENTATIVE]
ORDER RE ATTORNEY FEES PURSUANT TO GOVERNMENT CODE, SECTION 12965


I. Procedural History.
Plaintiff brought an action against defendant in which he claimed that he was terminated on account of his disability and need for reasonable accommodation. After a court trial, the court entered judgment in favor of plaintiff JOSE HERNANDEZ and against defendant MATTARE ENTERPRISE, INC., a California Corporation dba DESERT EXPRESS. Plaintiff was awarded $123,156.00 in monetary damages, including $43,156.00 in special damages and $80,000.00 in general damages.
II. PLAINTIFF IS ENTITLED TO REASONABLE ATTORNEY FEES.
Under California law, attorney fees are recoverable from the opposing party only as specifically provided by statute or contract. (See, California Code of Civil Procedure, Section 1021.) Because plaintiff proved a violation of FEHA, she is entitled to seek an award of reasonable attorney. (See, California Labor Code, Section 12965(b).) Although the statute states that the court “may” award fees, a prevailing plaintiff is entitled to fees “absent circumstances that would render the award unjust.” (Stephens v. Coldwell Banker (1988) 199 CA3d 1394, 1406; Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 CA4th 359, 394.)
The most widely accepted approach for determining a “reasonable” fee award is the “lodestar” method. The lodestar figure is calculated using the reasonable rate, multiplied by the reasonable number of hours spent on the case. (Ketchum v. Moses (2001) 24 C4th 1122, 1131-1132.)
In the present case the court finds that the reasonable hourly attorney rate for plaintiff’s counsel Lovretovich, Borck, and Lipski is $400 per hour. The court finds that the reasonable hourly attorney rate for plaintiff’s counsel Brandes was $300 per hour. This hourly rate is within the range of attorneys as experienced as plaintiff’s counsel in the local legal community, who handle these types of cases.
In the present case, the court finds that the reasonable number of hours spent on this case was 72 hours for attorney Brandes and that the reasonable number of hours spent on this case was 80 hours for attorneys Lovretovich, Borck, and Lipski. While plaintiff has the right to have multiple attorneys, the court finds that some of the work of the attorneys was duplicative and unnecessary.
Plaintiff’s counsel is entitled to attorney fees of $53,600.00.
An upward adjustment to the lodestar is not warranted in this action. This was a very straight forward and simple FEHA case. This case did not present any novel or difficult issues. There is no evidence that plaintiff’s counsel was precluded from taking other cases.
A downward adjustment to the lodestar is not warranted in this action. Plaintiff took this case on a contingency, and as set forth below, plaintiff’s limited success does not warrant a downward adjustment.

Case Number: BC563666    Hearing Date: January 20, 2017    Dept: 98

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Plaintiff,
vs.
ROGER SOLIS, et al.,
Defendants.

Case No.: BC563666

[TENTATIVE] ORDER RE: MOTION TO VACATE DISMISSAL

Dept. 98
1:30 p.m.
January 20, 2017

On November 12, 2014, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) brought this action against Defendant Roger Solis (“Defendant”) for insurance subrogation. Trial in this matter was set for May 12, 2016. On that date, a Stipulation for Dismissal with Reservation to Vacate and Enter Judgment upon Breach was filed and the Court ordered this case dismissed. Defendant has failed to make any payments required under the Stipulation. Declaration of Dana N. Meyers. Plaintiff therefore now moves to vacate the dismissal.

Pursuant to the Stipulation, any failure to make a timely payment is a material breach by Defendant. Plaintiff shall mail Defendant a letter advising that payment has not been received and, if payment is not made within fourteen (14) days, Plaintiff shall be entitled to have any dismissal in this action set aside.

The Court finds that Plaintiff is entitled to having the dismissal of this action set aside. Plaintiff’s Motion is therefore GRANTED.

A Final Status Conference is set for May 18, 2017 at 10:00 a.m. in Department 98. Trial is set for May 31, 2017 at 8:30 a.m. in Department 98.

The Court notes that Plaintiff has submitted on the moving papers without an appearance.

If Defendant intends to submit on this tentative, he must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC563755    Hearing Date: January 20, 2017    Dept: 97

32

STEPHEN BELANGER, et al.,
Plaintiffs,
v.

PROVIDENCE HOLY CROSS MEDICAL CENTER, et al.,
Defendants.
Case No.: BC563755
Hearing Date: January 20, 2017

[TENTATIVE] ORDER RE:
MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO FORM INTERROGATORIES (SET ONE)

This matter is continued to January 23, 2017, to be heard with Defendant’s other discovery motions. Defendant is ordered to give notice.

Case Number: BC563755    Hearing Date: January 23, 2017    Dept: 97

27

STEPHEN BELANGER, et al.,
Plaintiffs,
v.

PROVIDENCE HOLY CROSS MEDICAL CENTER, et al.,
Defendants.
Case No.: BC563755
Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
MOTIONS TO COMPEL PLAINTIFFS RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
On August 15, 2016, Defendant Providence Health System-Southern California (“Defendant”) served Plaintiffs Stephen Belanger and Maureen Smith-Belanger (“Plaintiffs”) with Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One). (Jennifer A. Cooney Declarations ¶ 2.) Plaintiffs have not provided any responses to date. (Id. at ¶ 5.)
Defendant’s unopposed motions to compel Plaintiffs’ responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) are granted. (CCP §§ 2030.290 and 2031.300.) Plaintiffs are ordered to provide verified responses, without objections, to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) within twenty days of notice of this order. Defendant is ordered to provide notice of this order.

Case Number: BC567668    Hearing Date: January 20, 2017    Dept: 37

CASE NAME: Shabsis v. The Regents of the University of California, et al.
CASE NUMBER: BC567668
HEARING DATE: 1/20/17
CALENDAR NUMBER: 9
DATE FILED: 12/24/14
TRIAL DATE: 10/10/17
NOTICE: OK
PROCEEDING: Demurrer (First Amended Complaint)
DEMURRING PARTY: Defendants County of Los Angeles and Los Angeles County Sheriff’s Department
OPPOSING PARTY: Plaintiff Michael Shabsis

COURT’S TENTATIVE RULING

The demurrer is overruled in its entirety. Counsel for Plaintiff to give notice.

STATEMENT OF THE CASE

This action arises out of Plaintiff Michael Shabsis’s consumption of Chantix, a smoking cessation medication manufactured by Defendant Pfizer, Inc. (Pfizer). Plaintiff alleges that he began taking the medication in September 2013 when it was prescribed to him by his physician, Philip Cogen, M.D., and that he subsequently suffered a severe psychotic breakdown leading to personal injuries. In the First Amended Complaint (FAC), Plaintiff asserts eleven causes of action: 1) medical negligence; 2) respondeat superior; 3) denial of medical care (42 U.S.C. § 1983); 4) excessive force (42 U.S.C. § 1983); 5) battery; 6) negligence; 7) strict product liability (failure to warn); 8) strict product liability (negligence); 9) breach of express warranty; 10) breach of implied warranty; and 11) negligence. In addition to Pfizer and Dr. Cogen, Plaintiff has named The Regents of the University of California (The Regents) and the County of Los Angeles and the Los Angeles County Sheriff’s Department (collectively, the County Defendants) as defendants. The County Defendants now demur to the third, fourth, fifth, sixth, and eleventh causes of action, which are the only causes of action asserted against them. Plaintiff opposes the demurrer.

DISCUSSION

I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court therefore treats the demurrer as admitting all properly pled material facts, but not contentions, deductions, or conclusions of fact or law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

II. Analysis

The County Defendants’ demurrer is based on a defect or misjoinder of parties and causes of action. (Code Civ. Proc., § 430.10, subd. (d).) They contend that there is no nexus between the alleged civil rights violations for denial of medical care and excessive force asserted against them, and the claims for medical negligence, product liability, and breach of warranty asserted against the other defendants—i.e., Dr. Cogen, the Regents, and Pfizer. Consequently, the County Defendants argue there is no ground for their compulsory or permissive joinder, and they effectively conclude that Plaintiff should bring a separate lawsuit in order to adjudicate the claimed civil rights violations.

In the FAC, Plaintiff essentially alleges two courses of conduct against the County Defendants. First, Plaintiff alleges that the County Defendants’ failure to provide medical care to Plaintiff while he was in their custody was part of a series of events leading to his personal injuries. Specifically, Plaintiff alleges that he began taking Chantix in September 2013 when Dr. Cogen prescribed the medication to help Plaintiff quit smoking. (FAC ¶ 15.) Plaintiff alleges that because of his consumption of Chantix, he had a severe psychotic breakdown that led to psychosis and violent behavior towards his grandfather. As a result of the psychotic breakdown, Plaintiff was arrested and incarcerated in the County Defendants’ Twin Towers Jail around the New Year period of 2013 to 2014. (Id. ¶ 17.) Plaintiff alleges that while he was in custody, the County Defendants ignored the pleas of his parents and public defender that Plaintiff needed psychiatric care and medications, and that because he was still psychotic and experiencing a severe manic episode, the County Defendants placed Plaintiff into complete isolation. (Id. ¶ 18.) Plaintiff alleges that because the County Defendants failed to provide adequate medical and psychiatric care, and due to the conditions of solitary confinement (e.g., the lights were constantly on), on January 2, 2014, he used his hands and fingers to gouge out his own eyes, rendering him permanently blind. (Id. ¶ 19.) Plaintiff alleges that it was the County Defendants’ denial of medical care that forms the nexus between their liability and the liability of the other defendants for their role in prescribing or otherwise providing the drug Chantix. (Id. ¶ 40 [third cause of action].) Plaintiff labels this conduct, as alleged, as a “chain- reaction of inextricably interrelated series of events….” (Opposition at 2)

The second course of conduct for which Plaintiff seeks to hold the County Defendants liable relates to the alleged use of excessive force. In the court’s view, this cannot properly be characterized as part of the alleged interrelated series of events. Specifically, Plaintiff alleges that while he was in the County Defendants’ custody, the County Defendants “caused [him] to fall.” (FAC ¶ 18.) Plaintiff alleges that after the incident of January 2, 2014, he was transported to the County USC Hospital where it was determined that he suffered a fractured hip as a result of the fall. (Id. ¶ 19.) Plaintiff alleges that the officer of the County Defendants physically abused him, and it is this course of conduct that underlies the fourth and fifth causes of action for excessive force and battery. (See id. ¶¶ 46-47, 53-54.) This course of conduct, and the injuries resulting therefrom, are distinct from the first course of conduct and have no nexus to the action asserted against Dr. Cogen, The Regents, or Pfizer.

The Code of Civil Procedure provides for the compulsory and permissive joinder of parties. The general rule of compulsory joinder is that the plaintiff must join any person whose interest is such that 1) in the person’s absence, complete relief cannot be afforded among those already parties to the action; or 2) any judgment rendered in the person’s absence might either a) prejudice the person’s ability to protect his or her interest in later litigation, or b) leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations. (Code Civ. Proc., § 389, subd. (a).) The rule of permissive joinder is that the plaintiff may join a defendant if 1) a right to relief is asserted against the defendant jointly, severally, or in the alternative; 2) the right to relief arises out of the same transaction or series of transaction; and 3) there is at least one question of law or fact common to all parties joined. (Id. § 379, subd. (a)(1).)

The County Defendants are properly joined in this action based on the allegations set forth in the third cause of action for denial of medical care. As discussed, Plaintiff attributes his blindness and related personal injuries to a series of interrelated events beginning with his taking of Chantix and ending with the County Defendants’ alleged failure to provide adequate medical and psychiatric care while Plaintiff was in their custody. Thus, there would appear to be an issue with respect to the apportionment of fault among the several defendants, and it is not clear that the court could afford complete relief in the County Defendants’ absence in light of Plaintiff’s allegations. At the very least, permissive joinder is appropriate in this respect. Plaintiff seeks to hold Dr. Cogen, The Regents, Pfizer, and the County Defendants jointly liable for his blindness and personal injuries arising out of his psychotic episode; there is an alleged factual nexus between the third cause of action for failure to provide medical care and the claims alleged against Dr. Cogen, The Regents, and Pfizer; and there are common questions as to Plaintiff’s alleged injuries and the cause of those injuries. Accordingly, the County Defendants are properly joined in this action by virtue of the third cause of action for denial of medical care.

As long as there is a common question involving each of the parties joined, the joinder-of-parties rules are satisfied, and the plaintiff may then join any other causes of action against any of the defendants joined, even if unrelated to the common question. (Code Civ. Proc., § 427.10, subd. (a).) For instance, in a personal injury case arising out of an automobile accident, the plaintiff may sue the driver of the car causing his injury and the owner of the car, with the common question of liability satisfying the party-joinder rules. The plaintiff may then join an unrelated claim against the owner of the car, including for example, for nonpayment of a promissory note. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) Parties to the Action, ¶ 2:222.)

In this case, the fourth cause of action for excessive force is based on the alleged physical abuse of the County Defendants’ officers while Plaintiff was incarcerated. The court agrees with the County Defendants that this cause of action is factually distinct from the rest of the lawsuit, which is based on the chain of events beginning with the alleged medical negligence and related claims (against Dr. Cogen, The Regents, and Pfizer) and ending with the alleged denial of care asserted against the County Defendants. However, the Code of Civil Procedure permits the liberal joinder of unrelated causes of action with respect to defendants who are properly joined as parties because of a common question of law or fact. As discussed, the County Defendants are properly joined as parties, and the fourth cause of action, though unrelated, is by extension appropriately asserted. (Code Civ. Proc., 427.10, subd. (a).)

The fifth, sixth, and eleventh causes of action for battery, negligence, and negligence appear to be essentially duplicative of the underlying causes of action for failure to provide medical care and excessive force. For instance, the alleged battery is based on the use of excessive force (FAC ¶¶ 53-54), and the alleged negligence is based on the failure to provide timely medical and psychiatric care (id. ¶ 60(d)) and the failure to properly hire, train, and supervise employees (id. ¶ 60(c), (e)). The eleventh cause of action simply incorporates the previous allegations and does not provide any additional facts. (Id. ¶¶ 98-103.)

The Monell allegations comprise part of the civil rights claims asserted against the County Defendants. Although the allegations are set off under their own heading in paragraph 64, Plaintiff acknowledges that the placement of the allegations was an inadvertent “slip up” and that the allegations underlie the third and fourth causes of action for denial of medical care and excessive force. At least with respect to the fourth cause of action, the allegations are sufficient to show that the County Defendants had policies that amounted to a deliberate indifference of Plaintiff’s constitutional rights. (See Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 835.)

The court notes the County Defendants’ point that prejudice may result from their joinder in this action. However, there are other procedures available to address these concerns. For instance, where joinder would be prejudicial or inconvenient to a particular defendant, the defendant may bring a motion to sever pursuant to Code of Civil Procedure section 1048, subdivision (b). (See Weil & Brown, supra, ¶ 2:206.) Additionally, because the liberal rules on party joinder and joinder of unrelated claims may lead to unduly complicated proceedings, to avoid unfairness or hardship to any party, the court may order separate trial on any of the causes of action joined, or make any other order to prevent embarrassment, delay, or undue expense. (Code Civ. Proc., § 379.5; Weil & Brown, supra, ¶ 2:230.) The County may raise these matters in an appropriate motion.

In sum, the demurrer for misjoinder of parties is overruled, and Plaintiff’s Monell allegations are sufficient.
___________________________
1. The County Defendants also contend that Plaintiff fails to sufficiently allege government liability for the alleged civil rights violations under Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658.
2. This is in contrast to the federal rule, which requires that all claims joined must arise out of the same transaction or series of transactions. (F.R.C.P., Rule 20(a).)

CASE NAME: Shabsis v. The Regents of the University of California, et al.
CASE NUMBER: BC567668
HEARING DATE: 1/20/17
CALENDAR NUMBER: 9
DATE FILED: 12/24/14
TRIAL DATE: 10/10/17
NOTICE: OK
PROCEEDING: Demurrer (First Amended Complaint)
DEMURRING PARTY: Defendant The Regents of the University of California (named as “The Regents of the University of California” and “Resnick Neuropsychiatric Hospital of UCLA”)
OPPOSING PARTY: Plaintiff Michael Shabsis

COURT’S TENTATIVE RULING

The Regents’ demurrer to the eleventh cause of action is sustained with 20 days leave to amend. Counsel for Defendant to give notice.

STATEMENT OF THE CASE

This action arises out of Plaintiff Michael Shabsis’s consumption of Chantix, a smoking cessation medication manufactured by Defendant Pfizer, Inc. (Pfizer). Plaintiff alleges that he began taking the medication in September 2013 when it was prescribed to him by his physician, Philip Cogen, M.D., and that he subsequently suffered a severe psychotic breakdown leading to personal injuries. In the First Amended Complaint (FAC), Plaintiff asserts eleven causes of action: 1) medical negligence; 2) respondeat superior; 3) denial of medical care (42 U.S.C. § 1983); 4) excessive force (42 U.S.C. § 1983); 5) battery; 6) negligence; 7) strict product liability (failure to warn); 8) strict product liability (negligence); 9) breach of express warranty; 10) breach of implied warranty; and 11) negligence. In addition to Pfizer and Dr. Cogen, Plaintiff has named The Regents of the University of California (The Regents) and the County of Los Angeles and the Los Angeles County Sheriff’s Department as defendants. The Regents now demur to the eleventh cause of action. Plaintiff opposes the demurrer.

DISCUSSION

I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court therefore treats the demurrer as admitting all properly pled material facts, but not contentions, deductions, or conclusions of fact or law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

II. Analysis

The Regents demur to the eleventh cause of action on two grounds. First, it contends that as a matter of law a defendant cannot be held liable for both professional and general negligence on the same set of facts. Because the first and second causes of action for medical negligence and respondeat superior seek to hold The Regents liable for professional negligence, it argues that the eleventh cause of action for general negligence is subject to demurrer because it is based on the same factual circumstances. Second, The Regents argue that to the extent the eleventh cause of action is based on the product liability claims asserted against Pfizer, the cause of action cannot proceed for two reasons: i) strict tort liability does not extend to the provision of services, and ii) the product liability claims are preempted by federal law.

In support of the first ground, The Regents cite Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, which held that “[a]s to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Id. at p. 998.) In Flowers, the plaintiff sued a hospital and nurse for injuries sustained following a fall from her gurney. The plaintiff alleged that the nurse, and by extension the hospital, was negligent in failing to ensure that the railing of her gurney was raised so as to prevent a fall. (Id. at pp. 995-996.) The Court determined that the plaintiff could not state a cause of action for ordinary negligence as well as professional negligence on the same set of facts because “the same factual predicate [cannot] give rise to two independent obligations to exercise due care according to two different standards.” (Id. at p. 1000.) According to the Court, “this is a legal impossibility: a defendant has only one duty, measured by one standard of care, under any given circumstances.” (Ibid.)

In this case, the first cause of action labeled “medical negligence” is based on Dr. Cogen’s prescription of Chantix, which Plaintiff alleges was a failure to exercise due care in treating Plaintiff’s disorder. (FAC ¶¶ 15, 22, 29.) Plaintiff alleges that Dr. Cogen should not have prescribed Chantix because he should have known, based on his education and training, Chantix was contraindicated for a person in Plaintiff’s condition. (FAC ¶ 31.) The second cause of action labeled “respondeat superior” is brought solely against The Regents and is based on the allegation that Dr. Cogen was The Regent’s employee or agent when he prescribed Chantix. (FAC ¶ 35.) In other words, the second cause of action is based on the same factual predicate as the first. Finally, in the eleventh cause of action, to which The Regents now demur, Plaintiff simply reincorporates the factual allegations underlying the other causes of action. (FAC ¶¶ 98-103.) For instance, Plaintiff alleges that “[a]s a direct and proximate result of the afore-described carelessness and negligence of the defendants, and each of them, Plaintiff sustained heretofore and hereinafter described injuries and damages.” (FAC ¶ 100.) In other words, there are no independent or separate facts underlying the eleventh cause of action for general negligence. It is premised on the same factual predicate as the first and second causes of action for “medical negligence” and “respondeat superior.”

In opposition to the demurrer, Plaintiff contends that the eleventh cause of action is based on a different set of facts from the first and second causes of action. Specifically, while the first and second causes of action are based on Dr. Cogen’s alleged professional negligence, and The Regent’s liability for the professional negligence based on the doctrine of respondeat superior, the eleventh cause of action is based on The Regent’s alleged failure as an ordinary employer to reasonable train and supervise its employees and agents. According to Plaintiff, “Flowers is utterly distinguishable and completely inapplicable in the instant case and REGENT can be held liable for ordinary negligence stemming from their function as a run of the mill employer with duties to reasonably supervise and train its employees/agents—a crystal clear distinction from professional negligence—since REGENTS[’s] liability arises from a different set of facts.” (Opposition, p. 5:7-11.)

The allegations of the FAC do not bear out this distinction. This action is based on Dr. Cogen’s prescription of Chantix and the injuries that allegedly flowed from the prescription. As discussed, the same factual predicate underlies the first, second, and eleventh cause of action, and it cannot give rise to multiple independent obligations to exercise due care according to different standards. “[A] defendant has only one duty, measured by one standard of care, under any given circumstances.” (Flowers, supra, 8 Cal.4th at p. 1000.)

In opposition, Plaintiff contends that Flowers is no longer good law. Plaintiff cites Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343. However, that case involved intentional tort claims based on conduct different from the type of conduct that underlies a claim for professional negligence. In Unruh-Haxton, the gravamen of the lawsuit was the allegation that two doctors had stolen human genetic material from patients receiving fertility treatments. (Id. at p. 349.) The Court determined that the intentional torts arising from this alleged intentional conduct were not based on professional negligence and were not subject to the Medical Injury Compensation Reform Act (MICRA) statute of limitations: “None of the patients assert the egg harvesting medical procedures fell below the standard of care. Rather, it is the intentional and malicious quest to steal genetic material that is the focus of the lawsuit.” (Id. at pp. 349, 355-356.) Thus, Unruh-Haxton is factually distinguishable from this case, which attempts to assert professional and ordinary negligence based on the same underlying conduct.

Plaintiff also cites Pouzbaris v. Prime Healthcare Services-Anaheim, LLP (2015) 236 Cal.App.4th 116. However, review was subsequently granted and the opinion superseded by Pouzbaris v. Prime Healthcare Services-Anaheim (Case No. S226846), which deferred further action pending the California Supreme Court’s consideration of Flores v. Presbyterian Intercommunity Hospital (Case No. S209836). The Court issued its opinion in Flores on May 5, 2016 (see Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75), and on August 31, 2016, the Court dismissed review and remanded the case to the Court of Appeal.

In sum, Plaintiff fails to allege sufficient facts to support the eleventh cause of action. The demurrer is sustained with 20 days leave to amend.
_____________________________
1. The Regents’ “third” point is that the eleventh cause of action is duplicative of the first and second causes of action. This argument is essentially the same as the first ground.
2. See California Supreme Court website: [as of Jan. 18, 2017].
3. With respect to The Regents’ second ground for demurrer, the court notes that Plaintiff states he is “not alleging products liability on a negligence theory against the REGENTS.” (Opposition, p. 2:8-9.)

Case Number: BC568185    Hearing Date: January 23, 2017    Dept: 93

HEARING ON MINORS COMPROMISE CONT TO JANUARY 24,2017, AT 1:30 P.M.

Case Number: BC569141    Hearing Date: January 24, 2017    Dept: 34

SUBJECT: Motion for judgment on the pleadings

Moving Party: Cross-defendant City of Los Angeles (“City”)

Resp. Party: None


The City’s Motion for Judgment on the Pleadings is GRANTED.

The City’s Request for Judicial Notice is GRANTED.


PRELIMINARY COMMENTS:

This Motion for Judgment on the Pleadings is unopposed. The Court finds such silence to be troubling. If plaintiffs believed that the motion should be overruled, they should have filed an opposition. If plaintiffs agreed that they have no case or that the cross-complaint needed to be amended, they should have agreed to withdraw or amend the cross-complaint.

The Court can only interpret plaintiffs’ silence as a sub silentio acquiescence to the Court’s possible dismissal of the cross-complaint.




BACKGROUND:

Plaintiff African Community Resource Center commenced this action on 1/12/15 against defendants for quiet title and declaratory relief. Plaintiff alleges that it is the owner of the subject property based on a grant deed dated 9/8/00. (Compl., ¶¶ 6-7.) Plaintiff alleges that Vista claims an adverse interest in the property pursuant to a grant deed dated 8/27/14. (Id., ¶ 8.) Plaintiff alleges that the deed was not authorized because the signatory on the deed acted without authority or approval of plaintiff’s board of directors. (Id., ¶ 9.) Plaintiff alleges that the City claims an adverse interest as holder of a lien as to a promissory note and deed of trust against plaintiff; plaintiff objects to any foreclosure by the City because the amount due on the note is in disputed. (Id., ¶ 10.)

Vista filed a cross-complaint on 8/4/15. A first amended cross-complaint was filed on 12/7/15 by Vista, Juan Velasquez, and The Barrington 2005 Trust against the City and others for: (1) declaratory relief; (2) quiet title; (3) breach of contract; (4) Business and Professions Code section 17200; and (5) cancellation of instruments.

ANALYSIS:

The City seeks judgment on the pleadings as to Vista’s first amended cross-complaint on the grounds of failure to join indispensable parties and failure to allege sufficient facts.

Failure to join parties

The City argues that the FACC fails as to the first, second, and fifth causes of action because plaintiff must join the purchasers of the property as indispensable parties.

Code of Civil Procedure section 389 subdivision (a) defines persons who should be joined in a lawsuit if possible, sometimes referred to as “necessary” parties…. It provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.” (Code Civ. Proc., § 389, subd. (a).) A determination that a person is a necessary party is the predicate for the determination whether he or she is an indispensable party … and requires analysis of the three distinct clauses of the above-referenced statute….

(TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1365-1366.)

"Whether a party qualifies as indispensable is ordinarily treated as a matter where the trial court has a large measure of discretion in weighing factors of practical realities and other considerations." (Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 568.) “Joinder is required only when the absentee’s nonjoinder precludes the court from rendering complete justice among those already joined…” and any effects upon future litigation or the absent party are immaterial. (Countrywide Home Loans v. Sup. Ct. (1999) 69 Cal.App.4th 785, 794.)

Because the first, second, and fifth causes of action seek relief as to the title of the subject property, it is highly likely that the purchasers of the property have an interest relating to this action. The cross-complaint appears to include the purchasers as Roe 61 and Roe 70. (See, e.g., FACC ¶ 70.) Cross-complainants have not named these parties, despite the City’s evidence that they should be known by the cross-complainants. (See RJN Exh. G.) The failure to notice or serve the action on the purchasers could render incomplete justice among the parties and raise a risk of inconsistent obligations if the purchasers seek redress as to their own rights in the property. (See, e.g., Bank of California Nat. Ass'n v. Superior Court in and for City and County of San Francisco (1940) 16 Cal.2d 516, 521-522 [“in an action by plaintiff to enforce a trust, where he claimed the property in his own right, to the exclusion of another actual beneficiary, failure to join the latter was held fatal to the judgment”].)

Accordingly, the Court GRANTS the motion as to the first, second, and fifth causes of action.

Government Claims

In the third and fourth causes of action, cross-complainants seek damages against the City. (See FACC ¶¶ 58, 64.) The fourth cause of action also seeks injunctive relief. (See Prayer, ¶ 3.) However, it is unclear if this is a valid claim for relief since the fourth cause of action appears to pertain to past actions. (See FACC ¶¶ 57, 60-61.)

Pursuant to Government Code section 945.4

“Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.”

Under the Tort Claims Act, complainants alleging claims for money or damages against public entities must file a claim with the entity, and then file a lawsuit only where claims were denied or rejected. (City of Ontario v. Sup. Ct. (1993) 12 Cal. App. 4th 894, 898.) Contract claims fall within the claims presentation requirements. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738-739.)

A tort claim for money damages against a public entity must be filed with the public entity within six months of the accrual of the cause of action. (Gov. Code, § 911.2.) “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2.) “The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) Timely claim presentation is a condition precedent to filing a lawsuit and complaints that do not allege timely claim presentation or cognizable excuses, are subject to a general demurrer. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.)

The FACC does not appear to allege that cross-complainants submitted a timely claim for damages prior to bringing their action. Because the instant motion is unopposed, cross-complainants provide no explanation as to whether they asserted a claim.

Accordingly, the Court GRANTS the motion as to the third and fourth causes of action.






SUBJECT: Motions to compel responses to form interrogatories, special interrogatories, and requests for production; motion to deem requests for admissions admitted

Moving Party: Cross-defendant City of Los Angeles (“City”)

Resp. Party: None


If the above Motion for Judgment on the Pleadings is not granted, the City’s motions to compel are GRANTED. If the Motion for Judgment on the Pleadings is granted, this motion will be taken off-calendar as MOOT.


ANALYSIS:

The City seeks to compel responses to form interrogatories, special interrogatories, and requests for production propounded on cross-complainants The Vista 2014 Trust, The Barrington 2005 Trust, and Juan Velasquez. The City also seeks to deem admitted the requests for admissions propounded on cross-complainants.

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2016) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Weil & Brown, ¶ 8:1375.)

California Code of Civil Procedure requires a response from the party to whom interrogatories are propounded within 30 days after service of the interrogatories. (Code Civ. Proc., § 2030.260(a).) If a party fails to serve timely responses, "the party propounding the interrogatories may move for an order compelling response to the interrogatories." (Code Civ. Proc., § 2030.290(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2030.290(a).)

California Code of Civil Procedure requires a response from the party to whom requests for production are propounded within 30 days after service of the requests. (Code Civ. Proc., § 2031.260(a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand." (Code Civ. Proc. § 2031.300(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2031.300(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

The City served the subject written discovery on cross-complainants’ counsel by mail on 9/30/16. (See Heinrichs Decl., Exhs. D, E, F.) The City’s counsel declares that responses have not been received despite counsel’s attempts to meet and confer. (See id., ¶¶ 5-12.) This is sufficient to support the instant motions.

Accordingly, the Court GRANTS the motions to compel. However, if the above Motion for Judgment on the Pleadings is granted, this motion will be taken off-calendar as MOOT.

Case Number: BC569323    Hearing Date: January 20, 2017    Dept: 98

CHON HO PARK,
Plaintiff,
vs.

SANG MOON OH, et al.,

Defendants.

CASE NO: BC569323

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTIONS TO COMPEL

Dept. 98
1:30 p.m.
January 20, 2017

On January 14, 2015, Plaintiff Chon Ho Park (“Plaintiff”) filed this action against Defendants Sang Moon Oh and Hyun Sook Oh (“Defendants”). On October 17, 2016, Defendants served Plaintiff with Second Supplemental Interrogatories and Second Supplemental Demand for Production of Documents. Declaration of Amit Palta, ¶ 4. Plaintiff has failed to provide responses. Id., ¶ 5. Defendants therefore now move to compel Plaintiff’s responses to their outstanding discovery requests.

A party who fails to serve a timely response to interrogatories or a request for production waives any objection to the interrogatories or request for production, including those based on privilege or work product. Cal. Code of Civ. Proc. §§ 2030.290(a), 2031.300(a). As no responses have been served by Plaintiff, Defendants’ Motions to Compel Plaintiff to serve responses, without objections, to their outstanding Second Supplemental Interrogatories and Second Supplemental Demand for Production of Documents are GRANTED. Plaintiff is ordered to serve responses within five (5) days upon notice of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC570364    Hearing Date: January 25, 2017    Dept: 98

JORGE ROMO,
Plaintiff,
vs.

HYUNDAI MOTOR AMERICA, et al.,

Defendants.

CASE NO: BC570364

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT

Department 98 of the Personal Injury (PI) court has determined that the above entitled action is complicated based upon the complexity of the issues presented. At the direction of Department 1, this case is hereby transferred and reassigned for all purposes to Judge Margaret Bernal in Department F of the Norwalk Courthouse.

Any pending motions or hearings, including trial or status conferences, will be reset, continued, or vacated at the direction of the newly assigned IC court.

Plaintiff shall give notice of the transfer order.

Dated: ___________________________________ Honorable Holly J. Fujie
Judge of the Superior Court

Case Number: BC570836    Hearing Date: January 20, 2017    Dept: 92

JOSEFINA CASTILLO,
Plaintiff(s),

vs.

VALLEY PRESBYTERIAN HOSPITAL, et al.,
Defendant(s).

Case No.: BC570836

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Plaintiff, Josefina Castillo filed this action against Defendant, Valley Presbyterian Hospital for medical malpractice arising out of a fall that occurred while she was admitted at Defendant’s facility.

Defendant moves for summary judgment on the complaint, contending the care and treatment of Plaintiff complied with the standard of care at all times and did not cause or contribute to Plaintiff’s injuries.

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

Defendant presents the expert declaration Patricia A. Waldron, R.n., M.S.N., C.L.N.C. in support of its motion for summary judgment. Waldron sets forth her expert qualifications, indicates she has reviewed Plaintiff’s medical records, details the care and treatment of Plaintiff, and concludes that Defendant, through its nursing staff and non-physician hospital staff, complied with the standard of care at all times and nothing it did caused or contributed to Plaintiff’s claimed injuries or death.

The declaration of Ms. Waldron is sufficient to meet the moving burden on summary judgment. There is no opposition and the time for any opposition to the motion has lapsed pursuant to California Code of Civil Procedure section 437(b)(2). Plaintiff therefore necessarily failed to meet her burden to raise a triable issue of material fact, and the motion for summary judgment is granted.

Case Number: BC571700    Hearing Date: January 23, 2017    Dept: 92

ANA DOMINGUEZ,
Plaintiff(s),

vs.

COUNTY OF LOS ANGELES, ET AL.,
Defendant(s).

CASE NO: BC571700

[TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND

1. Background Facts
Plaintiff, Ana Dominguez filed this action against Defendant, County of Los Angeles, by and through the Los Angeles County Metropolitan Transportation Authority, for damages arising out of a fall that occurred on one of Defendant’s buses. Plaintiff filed her complaint on 2/06/15. Defendant filed an answer on 8/02/16. Defendant filed a motion for judgment on the pleadings on 8/24/16. The crux of the MJP was that the County and the MTA are separate entities, and the pleading against the County was not properly filed. Plaintiff did not oppose the MJP; instead, she amended her complaint to add the MTA as a defendant in the action.

2. Demurrer to FAC
At this time, MTA demurs to the FAC, contending it was not timely filed and it was improper for Plaintiff to add the MTA as a doe defendant, as Plaintiff knew the MTA’s identity at all times from the date of her accident forward. Plaintiff opposes the demurrer, arguing (a) a bare pleading stating the general allegation that the plaintiff complied with the claims filing statutes is sufficient, (b) the FAC relates back to the original complaint, and (c) the doctrine of equitable tolling applies.

a. General v. specific pleading required to allege compliance with claims statutes
Plaintiff alleges, at ¶9 of her FAC, that she was required to comply with a claims statute, and that she did so. Defendant argues the Court can take judicial notice of the actual claim, and Plaintiff argues that ¶9 of the complaint is sufficient and judicial notice of contradictory information would not be proper at the pleading stage.

Defendant seeks judicial notice of Plaintiff’s claim, received on 8/06/14, and Defendant’s notice of rejection of same, dated 9/03/14. Defendant argues judicial notice is proper per Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374-378. In Gong, the court held that judicial notice of the claim itself and the statements made therein was proper, but that judicial notice of the truth of the matters stated in the claim would not be proper.

Plaintiff argues her allegations, at ¶9, are sufficient, and the Court cannot use judicially noticeable documents to find the complaint deficient. She cites Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547 and Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237 to support her position. Both of these cases did, indeed, hold that a bare pleading, using the judicial council form complaint, is sufficient to allege compliance with the Government Tort Claims Act. Neither case, however, considered the issue of whether judicial notice of the actual claim and/or its rejection would be proper.

Absent any judicially noticeable contrary evidence, a form complaint alleging compliance in general terms would be proper. However, the request for judicial notice is proper, per Gong, and the Court grants the RJN. The Court, therefore, consider both the FAC itself, as well as the judicially noticeable documents, in ruling on the demurrer.

b. Relation Back
Plaintiff’s second argument is that the FAC “relates back” to the original complaint, because it is based on the same general set of facts, involves the same injury, and refers to the same instrumentality. Plaintiff ignores, however, the requirement that she be “genuinely ignorant” of the real name of the doe defendant when she names that defendant as a doe. See CCP §474. Absent genuine ignorance, the doe amendment cannot give rise to application of the relation back doctrine. Pursuant to Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, due process forbids “relation back” where the amended complaint is against a defendant neither named in the original complaint nor properly added as a doe defendant.

Plaintiff makes no argument in opposition to the demurrer that she was “genuinely ignorant” of Defendant’s identity. Indeed, it appears she could not possibly make such argument, as she served her claim for damages on “Los Angeles County Metropolitan Transportation Authority,” which conclusively shows that she was not ignorant of the MTA’s identity at the time she filed her complaint.

c. Equitable Tolling
Plaintiff’s final argument is that equitable tolling applies, and the demurrer must be overruled. She relies on Addison v. State of California (1978) 21 Cal.3d 313, 319 to support her position. In Addison, the plaintiff filed a case against the defendant, a public entity, in federal court. The public entity successfully had the case dismissed on procedural grounds, and the plaintiff re-filed in state court. The defendant demurred on the ground that the state court case was not filed within six months after the tort claim was rejected. The trial court sustained the demurrer, but the court of appeal reversed; it held that the filing of the suit in federal court operated to equitably toll the time for filing a complaint in state court.

Plaintiff fails to show how Addison applies in this case. Plaintiff did not pursue any claim against the MTA in any other forum. She filed the instant suit only, and she filed it against the wrong entity. She cites no authority for the position that equitable tolling applies under these circumstances.

d. Conclusion
Defendant adequately showed that Plaintiff’s claim was rejected more than six months before Plaintiff filed her operative First Amended Complaint. It adequately showed that it is not a proper doe defendant, as Plaintiff was not genuinely ignorant of its identity when she filed her original complaint. It therefore met its burden to show the FAC is subject to demurrer for failure to comply with the Government Tort Claims Act. Plaintiff failed to show that her complaint is sufficient to overcome demurrer, that the relation back doctrine applies, or that the equitable tolling doctrine applies. The demurrer is therefore sustained. Because this is a purely legal issue, leave to amend is denied.

Case Number: BC573225    Hearing Date: January 25, 2017    Dept: 98

SAMUEL JAUREGUI,
Plaintiff,
vs.

SILVIANO QUEZADA PARDO, et al.,

Defendants.


CASE NO: BC573225

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Dept. 98
1:30 p.m.
January 25, 2017

On December 30, 2016, Plaintiff Samuel Jauregui filed the instant Motion. On January 10, 2017, Plaintiff filed an unconditional Notice of Settlement of Entire Case. Accordingly, this Motion is taken off calendar as MOOT.

Dated this 25th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC573946    Hearing Date: January 20, 2017    Dept: 53

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 53


DAVID RAMIN;

Plaintiff,


vs.


STATE FARM INSURANCE COMPANY, et al.,

Defendants.
Case No.: BC573946

Hearing Date: January 20, 2017


Time: 8:30 a.m.



[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION OF ISSUES


Plaintiff DAVID RAMIN’S motion for summary adjudication of issues is DENIED.

BACKGROUND

Plaintiff David Ramin (“Plaintiff”) filed this action on February 27, 2015 against Defendants State Farm General Insurance Company (“State Farm”) and Garrett Engineers, Inc. Plaintiff alleges that he suffered water damage to his home which was covered by his insurance policy with State Farm. However, State Farm denied Plaintiff’s claim. The operative First Amended Complaint (“FAC”) asserts causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) violation of Business & Professions Code §17200.

On October 13, 2015, State Farm filed an Answer to the FAC asserting twenty-six affirmative defenses. The twenty-third affirmative defense, which is the subject of this motion, identifies several coverage exclusions in the insurance policy and alleges that: “All or a portion of Plaintiff’s alleged losses consist of and/or were predominately caused by one or more Losses Not Insured and are excluded from coverage under Plaintiff’s policy.” (Answer ¶27.)

Plaintiff now moves for an order summarily adjudicating that State Farm has not provided any factual support for its affirmative defense that Plaintiff’s property loss was predominantly caused by “surface water” which is excluded from coverage under Plaintiff’s homeowner policy.

EVIDENCE

Plaintiff’s request for judicial notice is denied as to Exhibit A and granted as to Exhibit B.

State Farm’s evidentiary objection no. 1 is sustained; the remainder of State Farm’s evidentiary objections are overruled.

Plaintiff’s evidentiary objections are overruled.

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (CCP §437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Id.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

DISCUSSION

Procedural Issues

As an initial matter, this motion is procedurally defective. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP §437c(f)(1); see also (McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 975 (“[A]n order granting summary adjudication ‘to the extent’ a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct ‘cause of action’ … If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”).)

“When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense.” (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899-900 (emphasis in original).) “[T]he plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” (Id. at 900.)

Here, although the Notice of Motion references State Farm’s twenty-third affirmative defense, it does not specifically indicate that Plaintiff is seeking summary adjudication of this defense. Rather, the Notice of Motion states that Plaintiff is seeking an order “adjudicating that [State Farm] has not provided any factual support for its affirmative defense that Plaintiff’s property loss was predominantly caused by “surface water” which is excluded from coverage under Plaintiff’s homeowner policy…”

Whether or not State Farm has provided factual support for its twenty-third affirmative defense is not an issue that can be summarily adjudicated. Even if it were determined that State Farm has not provided factual support for its twenty-third affirmative defense, to be entitled to summary adjudication of that defense, Plaintiff must negate an element of the defense or establish that State Farm cannot reasonably obtain evidence to support the defense. (Id.)

Further, while Plaintiff’s motion addresses the applicability of the “surface water” exclusion, it does not address the other exclusions which are identified in State Farm’s twenty-third affirmative defense including the workmanship exclusion. Thus, even if the Court were to determine that the “surface water” exclusion did not apply, this would not completely dispose of State Farm’s twenty-third affirmative defense. For this reason alone, Plaintiff’s motion must be denied.

Triable Issues of Fact

Plaintiff contends that, as a result of State Farm’s pleading of its twenty-third affirmative defense, the entire issue of coverage is subject to summary adjudication. Even if this is an issue that is appropriate for summary adjudication, there are a number of triable issues of fact with respect to whether Plaintiff’s loss is covered.

The Court previously discussed the surface water exclusion in connection with State Farm’s motion for summary judgment, which was heard on December 12, 2016. In its order denying State Farm’s motion, the Court analyzed the policy language and the relevant case law and concluded that, interpreting the policy in Plaintiff’s favor, the surface water exclusion does not apply to the extent that Plaintiff’s loss was caused by something other than naturally spreading water. The Court then concluded that there was a triable issue of fact as to the cause of the loss. (See Garvey v. State Farm Fire & Cas. Co. (1989) 48 Cal.3d 395, 412-413, fn. 11 (the trier of fact determines the efficient proximate cause of a loss; i.e., whether the excluded peril or the insured peril was the predominant cause of the property damage).) The Court reaches the same conclusion on this motion. The evidence reflects that there are multiple possible causes of water intrusion. (See, e.g., Plaintiff’s Separate Statement of Undisputed Facts (“SUF”) 17.) Whether the efficient proximate cause of Plaintiff’s loss is an excluded peril or a covered peril is an issue reserved for the trier of fact.

Plaintiff argues that the loss is covered because the policy provides coverage for sudden and accidental discharges from within the home’s plumbing system. (SUF 36.) The Court rejected this argument in connection with State Farm’s motion for summary judgment. This provision in the policy only applies to personal property losses and Plaintiff did not claim any loss of personal property.

There are also triable issues of fact with respect to whether the workmanship and maintenance exclusions in Paragraphs 5.b.(2) and 5.b.(4) of the policy apply. (See State Farm’s Additional Material Facts 80-82.) Plaintiff argues in reply that State Farm is raising the applicability of these exclusions for the first time. However, State Farm’s twenty-third affirmative defense expressly cites to these provisions as a reason that Plaintiff’s loss is excluded from coverage. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.”).) Moreover, by failing to address these exclusions in his moving papers, Plaintiff has failed to meet his “initial burden to show there is no triable issue of material fact as to the defense.” (See’s Candy Shops, Inc., supra, 210 Cal.App.4th at 900.)

For the foregoing reasons, Plaintiff’s motion for summary adjudication is denied.

State Farm is ordered to provide notice of this ruling.


DATED: January 20, 2017
_____________________________
Howard L. Halm
Judge of the Superior Court

Case Number: BC574259    Hearing Date: January 20, 2017    Dept: 37

CASE NAME: Guzman v. Pacific Alliance Medical Center, Inc., et al.
CASE NUMBER: BC574259
HEARING DATE: 1/20/17
CALENDAR NUMBER: 6
DATE FILED: 3/4/15
TRIAL DATE: 9/4/18
NOTICE: OK
PROCEEDING: Motion for Order to Require an Undertaking for Costs of $20,000
MOVING PARTY: Defendant Dana M. Scott, M.D. (joined by Defendant Pacific Alliance Medical Center)
OPPOSING PARTY: Plaintiff Rolando Guzman

COURT’S TENTATIVE RULING

The motion is granted with respect to Defendant Dana M. Scott, M.D. in the requested amount of $2,000, without prejudice to a further application. Plaintiff is directed to file an undertaking in that amount within 30 days. The motion is denied as to Defendant Pacific Alliance Medical Center, which joins in the motion but makes no evidentiary showing that it also has a reasonable possibility of obtaining judgment in this action. Counsel for moving Defendant to give notice.

STATEMENT OF THE CASE

This is an action for professional negligence against a medical physician and the medical center with which the physician was affiliated arising out of a procedure to remove a kidney stone. Plaintiff Rolando Guzman alleges that on December 16, 2013 he underwent a surgical procedure performed by Defendant Dana M. Scott, M.D., who failed to perform the procedure within the standard of care. Plaintiff alleges that the surgery was performed in an unclean environment and without sufficient functional equipment, and that Defendant Scott did not obtain informed consent, did not provide appropriate discharge medications, and did not appropriately respond to Plaintiff’s post-procedure complaints. Defendant Scott now moves the court for an order requiring Plaintiff to provide an undertaking for costs in the amount of $20,000. Defendant Pacific Alliance Medical Center joins in the motion.

DISCUSSION

I. Applicable Law: Code of Civil Procedure section 1030

Defendant brings the motion pursuant to Code of Civil Procedure section 1030, which governs motions for an order requiring nonresident plaintiffs to post an undertaking to ensure payment of costs to a prevailing defendant. The purpose of the statute is “ ‘to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.’ ” (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 913; accord, Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428 [deter frivolous lawsuits against California residents].) To that end, when the plaintiff in an action resides out of state, the statute authorizes the defendant to, at any time, “apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action.” (Code Civ. Proc., § 1030, subd. (a).)

Section 1030 sets the standard for the court’s consideration of a motion for an undertaking. Such a motion shall be made on two grounds: “that the plaintiff resides out of state . . . and that there is a reasonable possibility that the moving defendant will obtain judgment in the action.” (Id. § 1030, subd. (b).) If after a hearing the court determines the two grounds for the motion have been established, an undertaking is mandatory: “the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs and attorney’s fees.” (Id. § 1030, subd. (c).) The consequence of the plaintiff’s failure to file the undertaking within the time allowed is that the action “shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.” (Id. § 1030, subd. (d).)

II. Analysis

A. Plaintiff Does Not Reside in California

It is undisputed that Plaintiff resides in Nevada. (Duggan Decl., Exh. A [response to form interrogatory 2.5], Exhs. E-F.) Accordingly, the first criterion for Defendant’s motion is satisfied, as Plaintiff is not a resident of California.

B. Defendant Shows a Reasonable Possibility of Obtaining Judgment

1. The “Reasonable Possibility” Standard

To establish the second criterion, the moving defendant must show there is a “reasonable possibility” he or she will obtain judgment in the action. (Code Civ. Proc., § 1030, subd. (b).) Although the defendant must make an evidentiary showing, the “reasonable possibility” standard requires only that the defendant present sufficient evidence to support a judgment in his or her favor, a lesser standard than that on summary judgment, for example. (See Shannon, supra, 164 Cal.App.3d at p. 914 [“Recognizing that it is impossible to predict in advance the outcome of a trial by jury, respondent, however, presented the best evidence available to divine the possible outcome of the trial de novo, which is all that section 1030, subdivision (a) of the Code of Civil Procedure requires”]; see also Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [“Respondents were not required to show that there was no possibility that appellant could win at trial, but only that it was reasonably possible that respondents would win”].)

2. Legal Principles Applicable to Medical Malpractice

The legal principles applicable to claims of medical malpractice are settled. The law requires that “physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Generally, whether a physician has complied with the applicable standard of care is an issue of fact requiring expert testimony: “ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’ ” (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

The physician’s negligence also must be a “substantial factor” in bringing about the patient’s injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-1315.) To establish causation, the patient must produce evidence, based on competent expert testimony, giving rise to at least the inference that “ ‘in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.’ ” (Ibid.) “ ‘A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.’ ” (Id. at pp. 1315-1316.)

3. Defendant’s Evidentiary Showing Is Sufficient

i. Standard of Care

The parties present conflicting expert testimony on the issue of the standard of care applicable to the procedure undertaken by Defendant. The parties agree that the procedure was cystoscopy and left retrograde pyelogram, and that Defendant was to perform a ureteroscopy and laser lithotripsy to remove a kidney stone. The parties also agree that the procedure was terminated when Defendant determined there was no working and sterile flexible ureteroscope with which to perform the laser lithotripsy. Plaintiff’s claimed injuries allegedly resulted from Defendant’s decision to abandon the procedure in the absence of a functioning ureteroscope, and the parties dispute whether the applicable standard of care required Defendant herself to ensure that the ureteroscope was ready and fully functional before beginning the procedure.

Defendant presents the declaration of David Leff, M.D., a board-certified urologist who is competent to opine on the issues of the applicable standard of care and causation in this case. He sets forth his background in this area of medicine, which is extensive, and states, inter alia, that he is fully familiar with the performance of laser lithotripsy procedures. In Dr. Leff’s opinion, Defendant met the standard of care with respect to her care and treatment of Plaintiff. He asserts that “[t]he standard of care did not require Dr. Scott to check the working condition or functionality of the flexible ureteroscope prior to its attempted use on 12/16/13. She was entitled to rely on the facility to provide her with functional equipment for the procedure.” (Leff Decl. ¶ 10.) Dr. Leff also opines that Defendant met the standard of care with respect to the issues of informed consent and post-procedure care. (Id. ¶¶ 9, 11.)

Plaintiff relies on the declaration of Feliciano Serrano, M.D., a physician specializing in interventional nephrology (i.e., kidney transplants). Unlike Dr. Leff, Dr. Serrano does not provide background information about his experience and training, or whether he has experience in urology in general or with laser lithotripsy in particular. Instead, Dr. Serrano states only that he has reviewed the declaration of Dr. Leff. According to Dr. Serrano, even if it was the facility’s obligation to provide sterile and functional equipment, Defendant breached the standard of care by beginning the procedure without first inquiring of the facility whether the equipment was sterile, functional, ready, and available to her. Dr. Serrano states that Plaintiff was fortunate the procedure was not “lifesaving” in nature, since Defendant began the procedure before she determined whether the necessary equipment was present and functioning in the operating suite. (Serrano Decl. ¶ 3.)

Unlike Dr. Leff, Dr. Serrano does not establish that he has the background or experience to provide an opinion on the standard of care applicable to a urologist performing a laser lithotripsy. The lack of information about Dr. Serrano’s background and experience is relevant to the weight and credibility of his opinion, particularly when compared with the opinion of Dr. Leff. For purposes of this motion, Dr. Serrano’s declaration fails to rebut Dr. Leff’s opinion about the standard of care, which is based on Dr. Leff’s experience as a urologist and familiarity with the procedure at issue. As discussed, according to Dr. Leff, a urologist performing a laser lithotripsy in a hospital setting may rely on the facility to provide sterile and functioning flexible ureteroscopes. It was not Defendant’s obligation to do so.

The court notes that according to Dr. Leff, Defendant had a discussion with a facility supervisor stating that it was necessary for the staff to check the equipment before the scheduling of a case, and that she wanted a representative from the company present at any subsequent procedure to ensure there would be a sufficient supply of functional equipment. (Leff Decl. ¶ 6(II).) Relying on these statements, Plaintiff contends that Defendant essentially acknowledges she breached the applicable standard of care because she failed to inquire of the staff whether the necessary equipment was available and functioning. However, Defendant shows that the standard of care applicable to her did not require her to ensure that the necessary equipment was available when she began the procedure, as this was the obligation of the facility. According to the standard of care articulated by Dr. Leff, Defendant’s statements do not show that she herself breached the standard of care, though they may suggest that the facility did not comply with its own obligations.

For these reasons, Defendant shows a reasonable possibility of prevailing on the issue of whether she breached the applicable standard of care, which would entitle her to judgment in this action.

ii. Causation

Dr. Leff also opines that Defendant, to a reasonable degree of probability, did not cause any of Plaintiff’s claimed injuries. (Leff Decl. ¶ 12.) Dr. Leff states that “[n]o actions attributable to [Defendant] caused the equipment to malfunction and she had no option but to abort the procedure in such circumstances.” (Id. ¶ 13.) In contrast, Dr. Serrano does not offer an opinion on the issue of causation. Accordingly, for purposes of this motion, Dr. Leff’s opinion on causation is not rebutted, and Defendant shows a reasonable possibility of prevailing on the issue of causation, which also would entitle her to judgment in the action.

C. The Amount of the Undertaking

Because Defendant has established both criteria set forth in Code of Civil Procedure section 1030, an undertaking is mandatory. (Code Civ. Proc., § 1030, subd. (c).) All that is left to determine is the appropriate amount of the undertaking. In this respect, the affidavit supporting the motion must set forth “the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action.” (Code Civ. Proc., § 1030, subd. (b).) Defendant seeks $20,000 for costs through trial, exclusive of non-recoverable attorney fees. (Duggan Decl. ¶ 5.) Some of the costs and anticipated costs are itemized as follows:

• $545 for Spanish language translator to depose Plaintiff
• $550 for court reporter to depose Plaintiff
• $12,000 (anticipated) to retain experts to prepare for trial and through trial
• $1,000 (anticipated) to depose Plaintiff’s expert
• $550 (anticipated) for court reporter to depose Plaintiff’s expert
• $6,200 (anticipated) for miscellaneous expenses, including the costs of trial

This is a total of $20,845, and the court notes that although Plaintiff opposes this motion, he does not contend that the amount of the undertaking is unreasonable. However, the trial in this matter is scheduled for September 4, 2018, and the court notes that Defendant has reserved a summary judgment hearing date for July 2018. All but the first two items of costs will be incurred no earlier than approximately 60 days before trial. While an application for costs may include “anticipated” costs, the application is nonspecific concerning the details of these costs and is problematic in that regard. In addition, the court is mindful of not imposing an unnecessary burden on Plaintiff, in a situation in which the costs are likely not to be incurred for another 18 months. Accordingly, the court orders an undertaking in the amount of $2,000, subject to a further application by the Defendant closer to the time when the costs will actually be incurred and supported by further detail concerning such costs.


D. Joinder of Pacific Alliance Medical Center

Although Pacific Alliance Medical Center joins in this motion, it offers no evidence of the standard of care applicable to it, as opposed to the standard applicable to Dr. Scott. Because there is no evidence that the medical center has a reasonable possibility of prevailing on the merits, the motion is denied as to the medical center.
________________________
1. However, the court’s determinations that the grounds for the undertaking have been met “have no effect on the determination of any issues on the merits of the action . . . and may not be given in evidence nor referred to in the trial of the action.” (Code Civ. Proc., § 1030, subd. (f).)

Case Number: BC574305    Hearing Date: January 20, 2017    Dept: A

21. BC574305 Marth v Southern California Edison


Motion to strike punitive damages (No opposition)

GRANT

Case Number: BC575343    Hearing Date: January 20, 2017    Dept: 92

JAYSON HOOSMAND,
Plaintiff(s),

vs.

STANDARD DOWNTOWN LESSEE, LLC, ET AL.,
Defendant(s).

Case No.: BC575343

[TENTATIVE] ORDER

1. Allegations of the Complaint
Plaintiff, Jayson Hooshmand filed this action against Defendants, Standard Downtown Lessee, LLC, Standard Downtown Employer, LLC, and Ferrado Downtown, LLC for damages arising out of an alleged assault and battery by Doe Defendants, who are alleged to have been the employees and/or agents of the named defendants. Plaintiff alleges he was approached, unprovoked, by several of Defendants’ security guards when he was leaving their establishment at approximately eleven at night. The guards followed him onto the elevator, continued into the underground parking lot, and assaulted and attacked him. Plaintiff indicates he is suing the employer under a theory of respondeat superior. His complaint includes causes of action for assault, battery, false imprisonment, IIED, negligence per se, negligence, and negligent hiring and training.

2. Motion for Financial Discovery
Plaintiff moves for leave to conduct financial discovery per Civil Code §3295(c), which provides:
No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition referred to in subdivision (a), and the defendant may be required to identify documents in the defendant's possession which are relevant and admissible for that purpose and the witnesses employed by or related to the defendant who would be most competent to testify to those facts. Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.

Thus, in short, pre-trial financial discovery is only appropriate if the trial court determines that there is a substantial probability that the plaintiff will prevail on his request for punitive damages at the time of trial. In this case, Plaintiff clearly provides substantial evidence that he would be entitled to punitive damages against the individuals who assaulted and battered him. Plaintiff provides his own testimony and the testimony of the friend who accompanied him on the night in question; both of them testified that the attack was unprovoked, and that the guards beat him very badly during the night in question. The question is whether Plaintiff provided substantial evidence that he would be entitled to such damages against those individuals’ employer. Civil Code §3294(b) provides:
An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Plaintiff argues he can show a substantial probability of prevailing on his claim for punitive damages against the defendant employer because (a) Yaphet Harris, a security guard supervisor, witnessed, but did not stop, the altercation, and (b) Ruben Puente testified that the guards at issue followed hotel policy and practice by initiating contact with Plaintiff.

Plaintiff’s first argument is that Yaphet Harris, a security guard supervisor, witnessed the altercation but did not stop the altercation. Plaintiff contends this shows that an officer, director, or managing agent of Defendants, Downtown Lessee and Standard Downtown Employer, authorized and/or ratified the conduct of the guards at issue. This is a difficult issue. Of note, Defendants’ opposition brief does not mention Yaphet Harris at all. Despite the lack of mention, the Court finds Plaintiff failed to meet his moving burden to show that Harris was an officer, director, or managing agent of Defendants. In White v. Ultramar (1999) 21 Cal.4th 563, the Supreme Court explained what the term “manager” means in the context of §3294(b). The Court held (citations omitted):
Using these interpretive rules to guide us, we believe that in amending section 3294, the Legislature intended (citation) to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy. Our view finds support in a principle which "seeks to ascertain common characteristics among things of the same kind, class, or nature when they are cataloged in legislative enactments." (citation.) The principle requires that when we interpret general statutory terms following the listing of specific classes of persons or things, we must construe the terms as applying to persons or things of the same general nature or class as those listed. The rule " ' "is based on the obvious reason that if the [writer] had intended the general words to be used in their unrestricted sense, [he or she] would not have mentioned the particular things or classes of things which would in that event become mere surplusage." ' " (citation.) Using the doctrine to aid our interpretation of "managing agent," we note that section 3294, subdivision (b), placed that term next to the terms "officer" and "director," intending that a managing agent be more than a mere supervisory employee. The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term "managing agent," and placing it in the same category as "officer" and "director," the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer's liability for punitive damages.

Plaintiff failed, per White v. Ultramar, to show that Harris was a “managing agent” to qualify as a person who could authorize or ratify behavior per §3294(b).

Plaintiff also contends Harris testified he witnessed Scott Howard, the director of security, escorting Plaintiff to the basement, and he had conversations with Howard after the incident wherein Howard indicated he believed the incident was handled properly. Plaintiff fails, however, to provide any evidence concerning what Howard’s position was. He states, in his brief, that he was the “director of security.” The cited portion of the deposition transcript, however, does not so establish. Additionally, the Court is not clear on whether the “director of security” would be a “director,” for purposes of §3294(b), and there is no briefing of this issue.

Plaintiff failed, therefore, to show that either Harris or Howard was a person whose behavior could be attributed to the entity defendants for purposes of §3294(b).

Plaintiff’s second argument is that Ruben Puente testified that the security guards had no training and were not provided with copies of guidelines, and that he believed the guards at issue followed hotel policy and practice by initiating contact with Plaintiff.

Puente was deposed in his capacity as the PMK re: the hotel’s hiring, training, supervising, disciplining, and firing of security personnel. Plaintiff did not highlight the testimony he wants to draw attention to (as required by CRC 3.1116(c), and often the testimony cuts off in the middle of a thought (without the next page being included). The Court is summarizing, to the best of its ability from the pages provided, what Puente stated in deposition. Puente testified that he didn’t take any courses concerning dealing with patrons such as Plaintiff, and was not aware that any such classes were offered. He testified that the hotel hires people with a “guard card,” and that they target people with hospitality industry experience and former military personnel. He testified that a company called “Guardsmark” provides a guard card, that is had a philosophy that you can protect and defend yourself when somebody is coming at you, but you cannot initiate contact. He testified that the hotel, in contrast to Guardsmark, has a policy of gradually escalating – starting by talking to the patron, then gently touching the patron, etc. Puente testified that he watched videos of the guards at issue in this case, and he could not, from the videotapes, determine that they violated any hotel policy. He testified that he does not, from watching the video, believe there is a need for additional training of the guards at issue. He testified that the hotel’s discipline policy allows him to give a verbal warning or to fire someone, but he is not clear on whether he can do anything in-between.

The foregoing tends to show the hotel believes the employees’ conduct at the time of the incident was appropriate, and that the employees were not punished, terminated, or re-trained as a result of the incident. While not briefed by either side, such factors would tend to show “ratification” of the event. The Court is therefore inclined to grant the motion. Plaintiff is permitted to conduct financial discovery against Defendants at this time.

The Court notes that, per §3295(d), Defendants are entitled to an order precluding admission of the financial discovery unless and until Plaintiff proves, to the trier of fact, that Defendants are guilty of fraud, malice, and/or oppression. This order, therefore, only concerns financial discovery, and does not concern admission of financial evidence at the time of trial.

Case Number: BC577302    Hearing Date: January 31, 2017    Dept: S27

INTRODUCTION
Defendant Providence Health System – Southern California which does business as Providence Little Company of Mary Medical Center San Pedro (“Providence”) moves for Summary Judgment, or alternatively, Summary Adjudication on Plaintiff’s complaint for:
1. Elder Abuse;
2. Negligence;
3. Willful Misconduct; and
4. Wrongful Death.

Mary Higgins (“decedent”) sues through her successor in interest Gary Higgins, who also sues in his individual capacity. If Summary Judgment is not granted, Providence seeks Summary Adjudication of the First Cause of Action for Elder Abuse and the Third Cause of Action for Willful Misconduct.

ANALYSIS
It appears to the Court that the declarations of Dr. Andrew Wachtel and Dawn Padley R.N., M.N. create triable issues on whether the standard of case was breached by Defendant’s staff and whether such breach caused injury to a reasonable medical probability. The Court would be inclined to deny Summary Judgment. (Plaintiff also argues that separate statement does not contain facts supporting Summary Judgment on Causes of Action 2 and 4.) The Court incorporates by reference its written rulings on Plaintiff’s objections to the declaration of Dr. Abraham Ishaaya. The Court notes that Plaintiff objects to the entire declaration on the grounds that the doctor is not competent as to the standard of care for nursing staff and speech therapists. The Court overrules that objection as to the standard for nurses, but sustains it as to speech therapists. Dr. Ishaaya lays no foundation for his familiarity with the standards for speech therapists.

On the alternative request for Summary Adjudication, Plaintiff invokes CCP section 437c(h):
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

One of the issues raised for Summary Adjudication is that Plaintiff cannot show the corporate ratification necessary for enhanced remedies. Plaintiff has twice attempted to set the deposition for Chief Nursing Officer, who is argued to be a managing agent and hence capable of ratification. The deposition did not go forward and Defendant has a motion for a Protective Order against this deposition scheduled for April 4, 2017. (Plaintiff argues that if there is a triable issue on Elder Abuse there will necessarily be a triable issue as to Willful Misconduct.)

The Court is inclined to advance the hearing on that motion and to continue the request for Summary Adjudication until after the Protective Order motion. If the Court denies the Motion for a Protective Order, it will either continue or deny Summary Adjudication until after the deposition is taken. The parties should be prepared to discuss dates for advancing and continuing the respective motions.

Case Number: BC577379    Hearing Date: February 10, 2017    Dept: 98

ADAM GORDON,
Plaintiff,
vs.

MARK SAVAGE, et al.,

Defendants.

CASE NO: BC577379

[TENTATIVE] ORDER RE: DEFENDANT’S DEMURRER TO COMPLAINT

Dept. 98
1:30 p.m.
January 10, 2017

On April 1, 2015, Plaintiff Adam Gordon (“Plaintiff”) filed this action for alleged damages arising out of an October 22, 2008 assault and battery. On November 29, 2016, Defendant Mark Savage filed the instant Demurrer. On December 30, 2016, Plaintiff filed a First Amended Complaint. Therefore, this Demurrer is taken off calendar as MOOT.

Dated this 10th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC577576    Hearing Date: January 20, 2017    Dept: 97

33

SAMUEL MENDEZ-ALCARAZ,
Plaintiff,
v.

ANTHONY PATRICK CAREY, et al.,
Defendants.
Case No.: BC577576

Hearing Date: January 20, 2017

[TENTATIVE] ORDER RE:
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY DEFENDANT ANTHONY PATRICK CAREY

BACKGROUND
Plaintiff Samuel Mendez-Alcaraz (“Plaintiff”) alleges that Defendant Anthony Patrick Carey (“Defendant”) is liable for Plaintiff’s injuries arising from an incident which occurred on June 6, 2013, while Plaintiff was employed at Bristol Farms. Plaintiff alleges that Defendant negligently controlled his vehicle, causing Defendant’s vehicle to forcefully collide with the wall of Bristol Farms. The collision allegedly caused a thunderous boom, sound, vibration and/or shaking to emanate through Plaintiff’s workplace which thereby frightened and injured Plaintiff. Plaintiff brings causes of action for General Negligence, Negligent Infliction of Emotional Distress, and Motor Vehicle Negligence.
EVIDENCE
Defendant’s request for judicial notice of items A through D is granted. (Evidence Code §§ 450-453.)
Defendant’s objections are overruled. Defendant objects to Plaintiff’s assertions made in Plaintiff’s Separate Statement. Objections may only be made as to evidence and cannot be asserted against Plaintiff’s arguments.
LEGAL STANDARD
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.
To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
With respect to a motion for summary adjudication, such a motion shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (CCP §473c(f)(1).)
DISCUSSION
Defendant moves for summary judgment/summary adjudication of Plaintiff’s causes of action for Negligence, Motor Vehicle Negligence, and Negligent Infliction of Emotional Distress. As an initial matter, the Court must stress that “there is no such thing as the independent tort of negligent infliction of emotional distress,” it is simply the tort of negligence. (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) Thus, though Plaintiff has asserted that there are three separate causes of action, Plaintiff’s claims are premised on only one cause of action: Negligence.
After reviewing Defendant’s motion, the Court finds that Defendant is moving for summary judgment/summary adjudication based on these following issues:
1) Plaintiff’s cause of action for Negligence has no merit since Plaintiff sustained no physical injury. (Mot. 11:7-11.)
2) The collision between Defendant’s vehicle and the premises did not proximately cause/legally cause Plaintiff’s injury. (Mot. 11:11-13.)
3) Plaintiff’s Complaint fails to allege any facts which allows for the recovery of damages because damages in a negligent infliction of emotional distress case are limited to only three specific types of specialized factual situations: (1) the negligent mishandling of corpses; (2) the negligent misdiagnosis of syphilis; and (3) the negligent breach of a duty arising out of a preexisting relationship. (Mot. 13:4-22.)
4) Plaintiff has failed to allege facts which show that Plaintiff suffered severe emotional distress as a result of the incident. (Mot. 13:23-14:19.)
The Court addresses each of these issues in turn, below.
1) PLAINTIFF’S CAUSE OF ACTION FOR NEGLIGENCE HAS NO MERIT SINCE PLAINTIFF SUSTAINED NO PHYSICAL INJURY
It is well established that even when there is no physical impact, recovery is usually allowed if fright results in a physical injury or illness. (Cook v. Maier) (1939) 33 Cal.App.2d 581, 584.) “The nerves and nerve centers of the body are a part of the physical system, and are not only susceptible of lesion from external causes, but are also liable to be weakened and destroyed from causes primarily acting upon the mind. If these nerves, or the entire nervous system, is thus affected, there is a physical injury thereby produced; and, if the primal cause of this injury is tortious, it is immaterial whether it is direct, as by a blow, or indirect, through some action upon the mind.” (Ibid. at 585.) A “causal connection proceeding in an unbroken course from the alleged fright to the alleged physical injury must be shown.” (Ibid.)
Here, it is undisputed that the collision caused a loud sound and Plaintiff saw glass breaking. (FACT 5.) Consequently, Plaintiff’s has sufficiently alleged that there is causal connection between his mental injuries suffered, i.e., horror, nervousness, grief, anxiety, and worry, and the fright Plaintiff experienced as a result of the collision. With respect to Defendant’s argument that Plaintiff’s severe emotional distress was unreasonable, the Court will address Defendant’s argument in item 4.
The Court concludes that Plaintiff was not required to plead or prove that Plaintiff suffered a physical impact and that Plaintiff’s allegations are sufficient to support the element of damages. The Court notes that Defendant has not provided evidence showing that Plaintiff did not suffer emotional distress as a result of the incident.


2) THE COLLISION BETWEEN DEFENDANT’S VEHICLE AND THE PREMISES DID NOT PROXIMATELY CAUSE/LEGALLY CAUSE PLAINTIFF’S INJURY.
The present matter is analogous to the facts of Wooden v. Raveling (1998) 61 Cal.App.4th 1035. In Wooden, plaintiff’s real property abutted a public street when defendant drove his car in a negligent manner on the adjoining street. (Id. at 1036.) Defendant’s car collided with a second car and the collision caused defendant’s car to be propelled onto plaintiff’s property “so that is appeared defendant’s car would strike plaintiff.” (Ibid.) The plaintiff alleged that she suffered emotional distress damages as a result of the incident. (Ibid.)
In Wooden, the court concluded that recovery for negligent infliction of emotional distress where plaintiff was placed in fear of injury to herself but was not physically harmed does not require either a preexisting relationship between parties or a finding that defendant's negligent conduct was outrageous; rather, recovery is governed by traditional negligence principles involving duty of care, breach of duty, and resulting damages. The court remanded the matter with instructions to the trial court to overrule defendant’s demurrer because plaintiff had plead sufficient facts to constitute a cause of action. (Id. at 1047.)
Like the court in Wooden, the Court finds that the facts alleged are sufficient to support Plaintiff’s claim for Negligence. Automobile drivers necessarily must be highly aware of the surrounding area and nearby property through which they drive. (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 667.) Thus, the facts as pled show that there was a breach of duty and resulting damages, i.e., Defendant drove his vehicle negligently which caused a large commotion and Plaintiff’s resulting injuries.



3) PLAINTIFF’S COMPLAINT FAILS TO ALLEGE ANY FACTS WHICH ALLOW FOR THE RECOVERY OF DAMAGES BECAUSE DAMAGES IN A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CASE ARE LIMITED TO ONLY THREE SPECIFIC TYPES OF SPECIALIZED FACTUAL SITUATIONS.
A claim for negligent infliction of emotional distress extends beyond allegations regarding the mishandling of corpses, the negligent misdiagnosis of syphilis. and the negligent breach of a duty arising out of a preexisting relationship since the Wooden case does not fall into any one of those categories. As previously discussed, the Wooden court concluded that recovery for negligent infliction of emotional does not require a preexisting relationship between parties. Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1047.)
The absence of a Supreme Court decision on the issue of whether a claim for negligent infliction of emotional distress is applicable to automobile collisions is not determinative of whether such a claim is tenable.
4) PLAINTIFF HAS FAILED TO ALLEGE FACTS WHICH SHOW THAT PLAINTIFF SUFFERED SEVERE EMOTIONAL DISTRESS AS A RESULT OF THE INCIDENT.

As stated in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930:

[T]he jurors are best situated to determine whether and to what extent the defendant's conduct caused emotional distress, by referring to their own experience. In addition, there will doubtless be circumstances in which the alleged emotional injury is susceptible of objective ascertainment by expert medical testimony. (See Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort (1971) 59 Geo.L.J. 1237, 1248 et seq.) To repeat: this is a matter of proof to be presented to the trier of fact. The screening of claims on this basis at the pleading stage is a usurpation of the jury's function.
Thus, to the extent that Defendant argues that a reasonable person would be able to cope with the impact to the building without suffering serious emotional distress, this issue is a matter to be presented to the trier of fact.
CONCLUSION AND ORDER
Defendant’s motion for summary judgment, or alternatively, motion for summary adjudication is denied for the aforementioned reasons. Plaintiff is ordered to provide notice of this order.

Case Number: BC578985    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


ZEWDU A. LIDETE, et al.,

Plaintiffs,


vs.


WEST HILLS HOSPITAL AND MEDICAL CENTER, et al.,

Defendants.
Case No.: BC578985


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION FOR SUMMARY JUDGMENT


Defendant West Hills Hospital and Medical Center’s Motion for Summary Judgment is GRANTED.
The Court considered the moving papers and plaintiff’s non-opposition.
BACKGROUND
On April 29, 2015, Zewdu A. Lidete, Ayalew Lidete, and Abigail Lidete filed a complaint West Hills Hosp. and Medical Center, H. Normal Xu, M.D., and Jon-Paul Seslar, DPM for wrongful death arising from medical negligence.
LEGAL STANDARD
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 166.
DISCUSSION
Defendant West Hills Hospital and Medical Center requests summary judgment in its favor and against plaintiffs on the grounds that the complaint has no merit and there are no triable issues as to any material fact warranting trial on those issues as to moving party.
The elements of medical malpractice are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. See Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 (citations omitted). Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 984-985 (citation omitted).
The case against West Hills arises out of decedent Nami Ayalew’s medical treatment on May 2, 2014 at West Hills. She passed away on May 4, 2014 at the hospital. Plaintiffs allege that West Hills was negligent in its care and treatment of Ayalew and that defendants negligently failed to provide proper medical advice, care, information, and treatment to decedent who was suffering from bilateral pulmonary embolism, causing her death.
Defendant argues that plaintiffs cannot establish that the independent physicians, hospital nurses, or non-physician personnel breached the applicable standard of care in caring for patient Nami Ayalew. Defendant presents evidence to support the following: Upon presenting to the emergency department on May 2, 2014, emergency physician Dr. Gentile recognized immediately that the patient was seriously ill and he aggressively treated her by placing a central line, administering blood pressure medication, intubating the patient, ordering lab work and EKG, and ordering a chest x-ray and CT angiogram. Dr. Gentile’s differential diagnosis included the possibility that the patient was suffering from an aortic dissection. Clot busting medication such as Altaplase will kill a patient with a dissection, therefore, Dr. Gentile properly ruled out aortic dissection before administering the clot busting drug Altaplase to treat plaintiff’s pulmonary emboli. The treatment of patient’s pulmonary embolism was timely and proper. The diagnostic work from the time of the patient’s arrival to the emergency department was timely, immediate, and proper. The emergency physician, hospital nurses, and hospital staff, properly and effectively responded to the patient’s Code Blue emergencies in the emergency department on May 2, 2014. There is no indication that the hospital nurses or non-physician staff performed any physician-ordered treatment in a negligent manner on May 2, 2014 or failed to perform any treatment as ordered. The treatment and care rendered to the decedent by the independent physician, nurses, and non-physician hospital staff on May 2, 2014 was at all times within the standard of care. See Jonathan Lawrence, M.D. and Deborah Smith, R.N. Declarations. To a reasonable degree of medical probability, no acts or omissions by the independent physician, hospital nurses, or non-physician staff, caused or contributed to the death of patient Nami Ayalew. See Dr. Lawrence Decl.
Defendant has met its burden. Plaintiff filed a notice of non-opposition. As such, plaintiff fails to raise a triable issue of material fact; thus, as a matter of law, defendant prevails.
Based on the foregoing, the motion is GRANTED.
Defendant is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC579906    Hearing Date: January 20, 2017    Dept: A

Wu v Gutierrez

MOTION TO COMPEL FURTHER RESPONSES

Calendar: 1
Case No: BC579906
Date: 1/20/17

MP: Plaintiffs, Wenge Wu, et al.
RP: Defendant, Brandon Gutierrez

RELIEF REQUESTED:
Order compelling further responses to requests for production.

DISCUSSION:
This case arises from the injuries that the Plaintiffs’ claim they suffered in a motor vehicle accident caused by the Defendants’ negligence. Trial is set for February 6, 2017.

This hearing concerns the Plaintiffs’ motion to compel further responses to the requests for production that accompanied their notice for the deposition of the Defendant, Brandon Gutierrez. The Plaintiffs seek cell phone records for the date of the accident and certified copies of all insurance policies that provide coverage.
A review of the notice of motion and the memorandum reveals that the Plaintiffs did not identify any legal authority that authorizes them to file a motion to compel further responses.
The correct authority is CCP section 2025.450, which authorizes the Court to produce documents when a party fails to produce documents sought in a notice of deposition. Section 2025.450(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.
Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”
The same issue identified in Calcor exists here. The declaration of the moving party’s attorney, Bryanna Popka, does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue. Ms. Popka does not offer any facts regarding the documents sought, the requests for production, or the disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact. This does not comply with the requirements of CCP section 2025.450(b)(1) as set forth in Calcor and Digital Music.

Therefore, the Court will deny the Plaintiffs’ motion in its entirety.

RULING:
Deny Plaintiff’s motion.

Case Number: BC580086    Hearing Date: January 23, 2017    Dept: 92

CINDY BALLON,
Plaintiff(s),

vs.

CITY OF MONTEREY PARK, ET AL.,
Defendant(s).

Case No.: BC580086

[TENTATIVE] ORDER TAKING MOTIONS TO COMPEL FURTHER RESPONSES OFF CALENDAR

Plaintiff filed these motions to compel on 11/10/16, setting them for hearing on 12/08/16 and 12/09/16. Plaintiff originally scheduled an Informal Discovery Conference for 11/15/16, but she failed to appear at that time. She then rescheduled the IDC for 11/28/16; at that time, Plaintiff appeared, but Defendant did not. The motions were scheduled for hearing on 12/08/16 and 12/09/16. At that time, the Court treated the hearing date as an IDC. During the course of the IDC, the parties tentatively reached a resolution of their outstanding issues.

At the conclusion of the IDC, the Court continued the hearing to 1/23/17. In the event the tentative resolution of the parties’ issues did not result in formal resolution of all issues, the Court ordered the parties to file a joint statement of items in dispute on or before 1/11/17. As of 1/18/17, the Court has not received any joint statement of items in dispute. The Court therefore presumes the parties have formally resolved all issues in connection with the motions, and the motions are taken off calendar as moot at this time.

Case Number: BC580593    Hearing Date: January 23, 2017    Dept: 92

RICHARD BURKE,
Plaintiff(s),

vs.

APPLE, INC., et al.,
Defendant(s).

Case No.: BC580593

[UPDATED TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND

On 1/18/17, Plaintiff filed an opposition to this demurrer. CCP §1005(b) obligated Plaintiff to file and serve any opposition papers at least nine court days prior to the hearing. Plaintiff did so a mere three days prior to hearing. Plaintiff’s papers include no explanation for the delay. Of note, the papers were filed after any reply was due. Per CRC 3.1300(d), the Court declines to consider the opposition. The Court notes that the remainder of this tentative order was drafted prior to receipt of the untimely opposition.

Plaintiff filed his original complaint in this action on 5/04/15. Defendant responded by way of demurrer. Plaintiff filed an FAC prior to the hearing, rendering the demurrer moot. Defendant filed a demurrer to the sixth cause of action in the FAC (violation of the CLRA), and the demurrer was set for hearing on 2/22/16. Plaintiff did not oppose the demurrer. The Court issued a tentative ruling sustaining the demurrer with leave to amend; all parties submitted on the tentative.

On 3/15/16, Plaintiff filed his operative Second Amended Complaint. The SAC continues to include a sixth cause of action for violation of the CLRA. On 4/15/16, Defendant filed a demurrer to the sixth cause of action, correctly noting that there were no substantive changes to the cause of action made in connection with the SAC, and the defects cited in the Court’s 2/22/16 order have not been cured. Any opposition to the demurrer was due on or before 1/09/17. As of 1/18/17, the Court has not received any opposition to the demurrer. In light of the lack of opposition, the demurrer is sustained without leave to amend at this time.

Defendant is ordered to file an answer to the SAC, with the sixth cause of action deemed stricken, within ten days.

Case Number: BC582462    Hearing Date: January 24, 2017    Dept: 46

Case Number: BC582462
SHUSHANIK MAKARYAN ET AL VS CHUBB INSURANCE COMPANY ET AL
Filing Date: 05/20/2015
Case Type: Ins Coverage (not Complex) (General Jurisdiction)

1/24/2017
OSC RE Dismissal(AFTER SETTLEMENT)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.

TENTATIVE RULING

Notice of Settlement was filed in this action on 11/14/2016 with an indication that the case would be dismissed within 35 days. It has now been 71 days since the notice was filed and there is still no dismissal on file. Therefore the court dismisses the action without prejudice conditional upon the court retaining jurisdiction to enforce the terms of any settlement pursuant to CCP Section 664.4.

IT IS SO ORDERED:


Frederick C. Shaller, Judge

Case Number: BC582806    Hearing Date: January 23, 2017    Dept: O

Hart-Penrod v. GEHM Homes, Inc. (BC582806)

Defendant Gehm Homes, Inc.’s MOTION TO REQUIRE OUT OF STATE PLAINTIFFS TO POST A BOND FOR $70,000 PURSUANT TO CCP 1030

Respondent: Plaintiff Gullickson


TENTATIVE RULING

Defendant Gehm Homes, Inc.’s motion to require out of state plaintiffs to post a bond pursuant to CCP 1030 is GRANTED. Reduced bond is set at $24,000.00.



Defendant Ghem Homes, Inc. moves for an order for Plaintiff Gullickson to post an undertaking because Plaintiff lives in Texas.

(a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, "attorney's fees" means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a REASONABLE POSSIBILITY that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. (CCP 1030(a) and (b).)

“Persons with developmental disabilities have the same legal rights and responsibilities guaranteed all other individuals by the United States Constitution and laws and the Constitution and laws of the State of California.” (Welf. & Inst. Code 4502(a).)

“It is the intent of the Legislature that persons with developmental disabilities shall have rights including, but not limited to, the following… (10) A RIGHT TO MAKE CHOICES IN THEIR OWN LIVES, INCLUDING, BUT NOT LIMITED TO… THE WAY THEY SPEND THEIR TIME, INCLUDING… LEISURE.” (Welf. & Inst. Code 4502(b)(10).)

“Each person with developmental disabilities who has been admitted or committed to a state hospital, community care facility as defined in Section 1502 of the Health and Safety Code, or a health facility as defined in Section 1250 of the Health and Safety Code shall have the following rights… (a) … TO KEEP AND BE ALLOWED TO SPEND A REASONABLE SUM OF HIS OR HER OWN MONEY FOR CANTEEN EXPENSES AND SMALL PURCHASES.” (Welf. & Inst. Code 4503.)

The Complaint alleges that on 5/24/13, while out on a group outing with Defendant, decedent was allowed to consume food that was not in conformity with his restricted diet causing him to choke and die.

Defendant presents the following evidence: Gehm Employee Michael Malvar reminded Decedent that he was on a soft diet, but Decedent stated, “I’m going to McDonalds and buy the food that I want.” (Malvar Decl., Ex. A.) After decedent purchased the Chicken McNuggets, Malvar offered to cut the food into small pieces but decedent declined this offer. (Id.) Malvar reminded Decedent to take his time chewing. (Id.) Decedent stood up and rushed to the restroom and staff followed him. Staff was behind him and was able to support him and laid him on his side, but he was nonresponsive. (Id.)

The court finds that based on the provisions of Welf. & Inst. Codes 4502 and 4503, Defendant has demonstrated “a reasonable possibility” that it will obtain a judgment in this action. Decedent had the right to make his own choices in his own life outside of Gehm Homes, including the way he spent his time, the choices he made in his daily living routine and leisure activities, and his choices on how he spent his own money for canteen expenses and small purchases. Further, Defendant has produced evidence demonstrating that it reminded Decedent about eating soft foods, while respecting Decedent’s right to make his own life choices outside of the facility. Defendant has also produced evidence that it was supervising Decedent while he ate his food as well as when he rushed to the restroom.

Defendant has requested a $70,000.00 bond, reflecting costs associated with travel to Texas to three separate locations. (Reply, 1:22-23.) However, the court notes that Plaintiffs Keller and Hart-Penrod has dismissed their claims. Accordingly, the amount of the bond shall be reduced to $24,000.00.

The court further finds that Defendant Gullickson has not demonstrated that she is indigent. She is a paralegal, earning $44,000 per year. She also owns a home with approximately $57,000.00 in equity. Although she has $25,000.00 in credit card debts, the equity in her home covers the reduced bond of $24,000.00.

Accordingly, motion is GRANTED with a bond set at $24,000.00.

Case Number: BC582968    Hearing Date: January 24, 2017    Dept: 98

JANELLE RODRIGUEZ,
Plaintiff,
vs.

JONATHAN RIOS, et al.,

Defendants.

CASE NO: BC582968

[TENTATIVE] ORDER RE: PLAINTIFFS’ DISCOVERY MOTIONS AND REQUEST FOR SANCTIONS

Dept. 98
1:30 p.m.
January 24, 2017

On May 26, 2015, Plaintiff Janelle Rodriguez filed this action against Defendant Jonathan Rios (“Defendant”) for alleged damages arising out of a September 16, 2014 vehicle collision. Farmers Insurance Exchange (“Farmers”) filed a Complaint-In-Intervention on December 30, 2016. On May 19, 2016, Defendant was served with Plaintiff’s Demand for Production of Documents, Set One; Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Admission, Set One. Declarations of Jeffrey L. Bear, ¶ 2. On September 22, 2016, an Informal Discovery Conference was held. Defendant’s counsel indicated that she had been unable to locate Defendant and therefore unable to provide verified responses. The Court granted Plaintiff’s Motions without monetary sanctions and the parties set October 21, 2016 as Defendant’s deadline to provide verified further responses. Plaintiff has yet to receive Defendant’s verified discovery responses. Id., ¶ 6. Plaintiff therefore now moves for terminating or issue sanctions.

The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. Cal. Code of Civ. Proc., § 2023.030(d). Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. Id., §§ 2023.010(d), (g). A terminating sanction may be imposed by an order dismissing part or all of the action. Id., §§ 2023.030(d)(3). “‘Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply … and (2) the failure must be willful.’” Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008) 163 Cal.App.4th 1093, 1102. Terminating sanctions should not be ordered lightly, but “where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.

As Defendant’s counsel has been unable to locate Defendan and provides no information to indicate that counsel expects to locate him in the near future. Defendant’s failure to keep his counsel apprised of his location given the pendency of this litigation renders the failure to comply willful. As such, Plaintiff’s Request for Terminating Sanctions is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 24th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC583989    Hearing Date: January 23, 2017    Dept: 92

JADEN WELSH,
Plaintiff(s),

vs.

ARAM MKHITARIAN, M.D., et al.
Defendant(s).

Case No.: BC583989

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Plaintiff, Jaden Welsh filed this action against Defendants, Aram Mkhitarian, M.D. and Woodland Hills Medical Clinic, Inc. for medical malpractice arising out of Defendants’ care and treatment of him at an urgent care clinic where he presented with flu-like symptoms; Plaintiff alleges he suffered blindness in his left eye and vision problems in his right eye as a result of the drug prescribed by Defendants to treat his symptoms.

Defendants move for summary judgment on the complaint, contending the care and treatment of Plaintiff complied with the standard of care at all times.

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id. A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

Defendants present the expert declaration of Max Franklin Lebow, M.D. in support of their motion for summary judgment. Lebow sets forth his expert qualifications, indicates he has reviewed Plaintiff’s medical records, details the care and treatment of Plaintiff, and concludes that Defendants complied with the standard of care at all times in connection with Plaintiff’s care and treatment.

The declaration of Dr. Lebow is sufficient to meet the moving burden on summary judgment. There is no opposition and the time for any opposition to the motion has lapsed pursuant to California Code of Civil Procedure section 437(b)(2). Plaintiff therefore necessarily failed to meet his burden to raise a triable issue of material fact, and the motion for summary judgment is granted.

Case Number: BC585236    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


GILLIANA SHERMAN,

Plaintiff,


vs.


CRYSTALL CORP., et al.;

Defendants.
Case No.: BC585236


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION


Defendants Crystall Corp. and Sergey Tsoi’s Motion for Summary Judgment is ruled on as follows: DENIED as to Crystall Corp. and GRANTED as to defendant Tsoi.

The court considered the moving papers, opposition, and reply.
BACKGROUND
On June 15, 2015, Gilliana Sherman filed a complaint against Crystall Corp. and Sergey Tsoi for negligence and premises liability.
LEGAL STANDARD
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 166.
DISCUSSION
Defendants request summary judgment as to the complaint on the ground that there are no triable issues of material fact as to any of the causes of action and thus defendants are entitled to judgment in their favor. Alternatively, defendants request summary adjudication as to each of the causes of action.
Plaintiff alleges that on December 21, 2014, she sustained injuries when she slipped and fell down on the dance floor that was wet and slippery due to presence of an unidentified liquid on its surface and due to failure to adhere to Dancehall operating requirements under City of West Hollywood Municipal Code section 5.40.030. Obscured lighting conditions prevented plaintiff from observing said conditions. Defendants are responsible for their failure to provide a safe, suitable and adequate premises at all times during which the dance was ongoing. The hazardous, dangerous condition was created and/or caused by defendants and/or existed for sufficient period of time prior to the incident for defendants to have corrected, cleaned, and/or warned plaintiff of the existence of said condition.
“The elements of a cause of action for premises liability are the same as those for
negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998. See also Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code section 1714(a). Generally, a person has a duty to use reasonable care under the circumstances. Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080. A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515; Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619.
The owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection. BAJI No. 8.20.
“The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” Girvetz v. Boys’ Market, Inc. (1949) 91 Cal. App. 2d 827, 829. See also Perez v. Ow (1962) 200 Cal. App. 2d 559.
Defendants argue that the first and second causes of action fail because plaintiff cannot establish the element of notice. Defendants argue that there is no evidence that any defendant had actual notice based on any express information of the alleged “unidentified substance” on the dance floor prior to plaintiff’s fall. Defendants also argue that there is no evidence that any defendant had constructive notice of the alleged “unidentified substance” within a reasonable time prior to plaintiff’s fall. According to the declaration of Alexander Greaschenko, who was employed as a band member/performer by Crystall Corp. at its restaurant where plaintiff fell, he states that the stage where he performs is located directly in front of the dance floor. The stage is raised so that he can see the entire dance floor surface from the stage. Part of his job is to observe the dance floor and report any spills or liquid to management. He recalls that a lady fell on the dance floor on December 21, 2014. He states that the circumstances were that immediately before the incident, the dance floor had been cleared of all people and was completely empty, with all the lights turned on. The dance floor was clearly visible. He observed the dance floor and could clearly see that there was no liquid or any other substance on the dance floor. The purpose of clearing the dance floor was to bring out a cake on the floor and for everyone to sing “Happy Birthday” to a customer who was there for a birthday party. After the dance floor was cleared, the cake was brought out to the floor and some people from the birthday party came onto the dance floor. After the band and members of the party sang, the cake was removed from the dance floor. With all the lights still on over the dance floor, he again observed the dance floor and could clearly see that there was no liquid or any other substance there. He invited the restaurant customers to dance. Within two to three minutes after the dancing began, he saw a lady fall on the dance floor. They stopped the music and cleared the floor again so that restaurant staff could help the lady.
According to the declaration of Natasha Dei, manager at the restaurant, states that when the band took an intermission and the dance floor was cleared of all people so that a birthday cake could be brought out for one of the parties at the restaurant, she inspected the dance floor and did not find any liquid or other foreign substance on the floor. No one reported any spills or other dangerous conditions at the restaurant before plaintiff’s fall. This was the first time that any customer had ever slipped and fell at the restaurant since she started work at the restaurant when it first opened. Further, it is the policy of the restaurant that during the time that the band takes breaks or intermission, the dance floor is inspected by herself and/or Sergey Tsoi. It is also the policy of the restaurant to prohibit customers from bringing drinks onto the dance floor. If a customer is seen with a drink on the dance floor by declarant or an employee, the policy is to ask the customer to leave the dance floor. See also declaration of Sergey Tsoi stating same.
Defendants also argue that the claims fail as against Tsoi because he did not own, possess, or control the property in his individual capacity. Crystall was a tenant at the subject premises where it exclusively operated and controlled the restaurant. There is no evidence that Tsoi used the property as if it were his own, rather than that of Crystall on the date of the incident. According to Tsoi’s Declaration, he is the sole shareholder, director, and president of Crystall Corp., which has owned, operated, and controlled the Crystall Restaurant. He states that he has never owned, operated, or controlled the Crystal Restaurant in his individual capacity.
In opposition, plaintiff argues that there is a triable issue of fact as to whether the spill on the dance floor was created by defendants’ employees. Plaintiff contends that it is more likely than not that defendants’ employees created the dangerous condition. Defendants employed servers who were working that day. Plaintiff also contends that although defendants had a rule/policy prohibiting employees from carrying drinks on the dance floor, which created a standard of care, the servers were openly breaking the rule and fell below the standard of care. The servers were the only source of the spill because defendants had a policy of prohibiting patrons from entering the dance floor with drinks and strictly enforced that rule. According to the declaration of Ike Sherman, he observed the restaurant servers walking across the dance floor with drinks to serve the guests. The drinks included large size pitchers and food plates. He also states that after his wife fell, he took her to their table to assess her condition. He asked the staff to bring ice. Another guest assessed his wife’s overall condition. Ike Sherman immediately informed the restaurant manager, Natasha Dei, about the incident and the spill on the dance floor. The regular lights were turned on above the dance floor and he observed a large amount of liquid where plaintiff slipped. He observed two employees dressed in uniform cleaning the spill with large towels. See Sherman Decl., Ex. D (showing server cleaning up the spill on which plaintiff slipped). Plaintiff also argues that defendants failed to remedy the dangerous condition when they had the opportunity to do so. Further, defendants had no written policies or procedures for inspecting the dance floor during intermissions.
Plaintiff also argues that Tsoi, as director of the corporation, has a duty of care not to injure third parties. See Frances T. v. Village Green Owners Assoc. (1986) 42 Cal. 3d 490. Tsoi admits he was solely responsible for supervising the employees and in that capacity, he was responsible for making sure that employees complied with the alleged company policy not to walk on the dance floor with drinks. Plaintiff contends that he failed to enforce that policy. Thus, plaintiff argues, Tsoi personally directed and authorized such tortious conduct and otherwise participated in the conduct that led to the creation of the dangerous condition. Plaintiff also contends that there is a triable issue as to whether he properly inspected the floor considering a spill remained on the dance floor.
In reply, defendants argue that plaintiff failed to submit any evidence as to notice to defendants, that the floor was “cleared of all people” and did not have any liquid or any other foreign substance on the floor. Further, defendants reiterate, there was no report of any spills or any other dangerous conditions.
Defendants also argue that plaintiff has failed to submit any evidence to dispute that Tsoi did not own, possess, or control the property in his individual capacity.
Plaintiff’s objections are OVERRULED in their entirety. Further, there is no proposed order as is required.
Defendants have met their burden. As to defendant Tsoi there is no grounds to hold him individually liable. Plaintiff does not dispute that he does not own, possess, or control the subject property in his individual capacity. Further, there is no evidence as to any wrongful conduct of Tsoi. Plaintiff fails to present sufficient evidence to raise a triable issue of material fact and as a matter of law Tsoi prevails.
As to Crystall Corp., plaintiff presents sufficient evidence to raise a triable issue of material fact as to whether a defendant employee created the purported spill. There is also a triable issue as to whether defendants reasonably inspected the floor during the intermission.
Based on the foregoing, the motion is GRANTED as to Tsoi and DENIED as to Crystall Corp..
Defendant is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC585422    Hearing Date: January 25, 2017    Dept: 32

WALTER LANCASTER,
Plaintiff,

v.

SEAN BARRY, and THE TICKET CLINIC, P.L.C.,
Defendants.
Case No.: BC585422

Hearing Date: January 25, 2017

[TENTATIVE] ORDER RE:
PLAINTIFF’S MOTION TO SET ASIDE SUMMARY JUDGMENT


BACKGROUND
On June 6, 2016, the Court granted Defendants Sean Barry (“Barry”) and The Ticket Clinic’s (“Clinic”) ex parte application to file a motion for summary judgement. On August 26, 2016, this Court granted Defendants Sean Barry (“Barry”) and The Ticket Clinic’s (“Clinic”) motion for summary judgment. On September 7, 2016, Plaintiff filed a motion to reconsider the granting of Defendants’ motion for summary judgment. The Court denied the motion on procedural and substantive grounds on November 23, 2016. On November 7, 2016, Plaintiff filed this motion to set aside the summary judgment entered on August 26, 2016.

DISCUSSION
A. Motion to Set Aside Summary Judgement
Code of Civil Procedure section 473, subdivision (b), provides in relevant part:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken...No affidavit or declaration of merits shall be required of the moving party.
(Code of Civ. Proc. § 473, subd. (b).) “Relief from summary judgment is within the discretion of the court.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681.)
Here, Plaintiff moves the Court to set aside the summary judgment entered on August 26, 2016. Plaintiff relies on the same “outline previously drafted and filed” for his Motion to Reconsider the Order of August 22, 2016 as his basis for this motion.
Plaintiff’s statement of facts filed for his previous motion does not establish his own “mistake, inadvertence, surprise, or excusable neglect” such as to warrant relief under section 473, subdivision (b). Additionally, in connection with this motion, Plaintiff did not submit a copy of the answer or other pleading proposed to be filed if relief were to be granted.
Accordingly, Plaintiff’s motion to set aside the summary judgment entered on August 26, 2016 is DENIED.

Case Number: BC585967    Hearing Date: January 20, 2017    Dept: 34

SUBJECT: Motion for summary judgment / adjudication

Moving Party: Defendants Los Angeles Unified School District and Giovanni Trivino

Resp. Party: None



Defendants’ request for summary judgment is GRANTED.

Defendants’ Request for Judicial Notice is GRANTED as to the existence of the items requested by defendants. (See Evid. Code, § 452(d); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 [“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”].)


BACKGROUND:

Plaintiffs commenced this action against defendants on 6/22/15. Plaintiffs filed a first amended complaint on 10/8/15 against defendants for: violations of the Rehabilitation Act and the ADA, negligence, violation of the Unruh Act and DPA, and violations of mandatory duties. Plaintiff Benyamin suffers from intellectual disabilities and was an adult student enrolled in LAUSD. Homanyoun is Benyamin’s father and conservator. Plaintiffs allege that between March and October 2013, defendants violated Benyamin’s rights by failing to provide a safe environment, resulting in Benyamin’s injuries. Plaintiffs allege that defendants retaliated against Homanyoum for writing letters regarding Benyamin’s injuries.

On 12/9/15, plaintiffs dismissed defendant Campos from this action, and dismissed the thirteenth and fourteenth causes of action as against defendant Trivino.

On 1/21/16, the Court granted defendants’ special motion to strike as to plaintiffs’ allegations based on the temporary restraining order and complaint to adult protective services in the fifth and sixth causes of action. The motion was otherwise denied.

On 3/2/16, the Court sustained defendants’ demurrer to the thirteenth and fourteenth causes of action.

On 7/17/16, the Court granted plaintiffs’ counsel motion to be relieved. On 8/31/16, the Court held a Case Management Conference and continued the trial and this motion for summary judgment to allow plaintiff to obtain counsel.


ANALYSIS:

Defendants move for summary judgment, or alternatively summary adjudication as to each of plaintiffs’ claims for relief.

First, second, third, fourth, seventh, and eighth causes of action

Plaintiffs’ first through eighth causes of action are for violations of the ADA and Rehabilitation Act. The first and second causes of action allege that LAUSD violated the Rehabilitation Act and ADA by causing injuries to Benyamin when he was on the school bus between March 2013 and October 2013. The third and fourth causes of action allege that LAUSD violated the Rehabilitation Act and ADA by causing injuries to Benyamin when he was at school between March 2013 and October 2013. The seventh and eighth causes of action allege that LAUSD engaged in discriminatory exclusion from public school in violation of the Rehabilitation Act and ADA.

“To establish a prima facie case of discrimination under § 504, plaintiffs must show that: (1) [Benyamin] is disabled; (2) he is otherwise qualified to participate in the District's program; (3) he has been subject to discrimination by defendants solely because of his disability; and (4) defendants are recipients of federal funding.” (Alex G. ex rel. Dr. Steven G. v. Board of Trustees of Davis Joint Unified School Dist. (E.D. Cal. 2005) 387 F.Supp.2d 1119, 1124.) “There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act,” and thus “courts have applied the same analysis to claims brought under both statutes.” (Zukle v. Regents of University of California (9th Cir. 1999) 166 F.3d 1041, 1045, fn. 11.)

“To recover monetary damages under Title II of the ADA or the Rehabilitation Act,[fn. omitted] a plaintiff must prove intentional discrimination on the part of the defendant.” (Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, 1138.) The appropriate test for determining intentional discrimination is a standard of deliberate indifference. (Ibid.) “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood.” (Id. at p. 1139.) “[I]n order to meet the second element of the deliberate indifference test, a failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness.” (Ibid.)

[The deliberate indifference standard] is even higher than gross negligence—deliberate indifference requires a culpable mental state. [Citation.] The state actor must “recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” [Citation.] In other words, the defendant “knows that something is going to happen but ignores the risk and exposes [the plaintiff] to it.” [Citation.] The deliberate-indifference inquiry should go to the jury if any rational factfinder could find this requisite mental state. [Citation.]

(Patel v. Kent School Dist. (9th Cir. 2011) 648 F.3d 965, 974.)

Because the motion is unopposed, the following facts are undisputed. From 2/27/13 through 2/27/14, Benyamin attended Leichman High School Special Education Center, was to be transported between home and school as a related service, and adult assistance would be provided to him while on the school bus. (DMF 51, 52, 79, 80.) Benyamin was physically with a District Special Education Assistant or Special Education Trainee while he was on the bus and was always physically with another adult while at school. (DMF 53, 85, 86.) These assistants received certain training and certifications. (DMF 54-56, 87-92.) In order to protect Benyamin from injury while on the bus, LAUSD covered the window and wall adjoining his seat with a protective mat and Benyamin wore a safety harness. (DMF 57-58.) LAUSD altered Benyamin’s bus route in order to shorten his time on the bus. (DMF 60.) After changing the bus route, his adult assistant did not observe any significant behaviors on the bus. (DMF 61.) Benyamin often boarded the bus and came to school with injuries sustained outside of school. (DMF 62, 98, 100-101.) While at school, Benyamin’s teachers documented his behavior and he was taken to the nurse to examine all apparent physical injuries. (DMF 95-96.) Defendant presents evidence suggesting that Benyamin’s alleged injuries did not occur at school or on the bus and that plaintiffs cannot establish such. (See DMF 63-72, 104-112.)

Plaintiffs stopped sending Benyamin to school on 10/15/13. (DMF 118.) LAUSD continued to send the bus for Benyamin on and after 10/15/13. (DMF 119.) Defendants did not tell Homayoun to stop sending Benyamin on the bus after 10/15/13. (DMF 121.) In letters dated 10/10/13 and 11/15/13, LAUSD proposed nonpublic schools as possible placements for Benyamin. (DMF 123, 124.) Benyamin was not accepted by at least two of the nonpublic schools, and Homayoun did not like the others. (DMF 127.) In a letter dated 11/4/13, LAUSD offered Home Teaching Services. (DMF 128.) In January 2014, Homayoun asked that Leichman stop contacting his home by telephone regarding Benyamin’s ongoing absence from school. (DMF 129.) Though LAUSD invited Homayoun to Benyamin’s annual review on 4/4/14, he did not respond or attend. (DMF 130.)

Defendants’ evidence is sufficient to meet its burden of establishing that there are no triable issues of material fact that defendants did not violate the Acts by injuring Benyamin while he was on the bus or at school or by excluding Benyamin from school. Because the motion is unopposed, plaintiffs fail to raise a triable issue of fact as to these causes of action.

Accordingly, defendants’ request for summary adjudication of the first, second, third, fourth, seventh, and eighth causes of action is GRANTED.


Fifth and sixth causes of action

The fifth and sixth causes of action allege that defendants violated the Rehabilitation Act and ADA by retaliating against Homayoun for his complaints regarding the injuries.

Defendants argue that the causes of action as to the Rehabilitation Act and ADA fail because plaintiffs failed to exhaust administrative remedies. The IDEA provides, in relevant part:

“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.” (20 U.S.C. § 1415(l).)

“ ‘This provision bars plaintiffs from circumventing [the] IDEA's exhaustion requirement by taking claims that could have been brought under IDEA and repackaging them as claims under some other statute—e.g., section 1983, section 504 of the Rehabilitation Act, or the ADA.’ [Citation.]” (Batchelor v. Rose Tree Media School Dist. (3d Cir. 2014) 759 F.3d 266, 272.)

In Payne v. Peninsula School Dist. (9th Cir. 2011) 653 F.3d 863, 871 [overruled on other grounds by Albino v. Baca (9th Cir. 2014) 747 F.3d 1162], the court held that “the IDEA's exhaustion provision applies only in cases where the relief sought by a plaintiff in the pleadings is available under the IDEA. Non–IDEA claims that do not seek relief available under the IDEA are not subject to the exhaustion requirement, even if they allege injuries that could conceivably have been redressed by the IDEA.” (Ibid.) Claims for retaliation under Section 504 of the Rehabilitation Act and the ADA have been found to be subject to the IDEA’s exhaustion requirements where such claims “relate unmistakably” to the provision of a FAPE. (See Batchelor v. Rose Tree Media School Dist. (2014) 759 F.3d 266, 274; M.T.V. v. DeKalb County School Dist. (11th Cir. 2006) 446 F.3d 1153, 1158-1159.) Here, the alleged protected activity concerned Benyamin’s alleged injuries and education. (See FAC ¶¶ 46, 52.) These claims are therefore subject to the exhaustion requirements. (See, e.g., M.T.V., 446 F.3d at pp. 1158-1159.)

Defendants assert that plaintiffs filed two administrative complaints for due process hearings before the California Office of Administrative Hearings. (DMF 131.) These complaints appear to have been submitted in August 2013 and settled in October 2013. (See Def. Exh. FF.) Defense counsel declares that, because there was never a hearing, no factual record was developed through the due process procedures concerning plaintiffs’ complaints. (DMF 133.)

Because this motion is unopposed, there is no evidence that Homayoun engaged in any other efforts to exhaust administrative remedies as to the alleged conduct occurring after the settlement of the due process complaint.

Defendants’ request for summary adjudication of the fifth and sixth causes of action is GRANTED.


Ninth through twelfth causes of action

The ninth through twelfth causes of action assert claims for negligence, violations of the Unruh Act, and violations of the Disabled Persons Act (DPA). These claims are based on alleged injuries that occurred on 10/14/13. (See FAC pp. 14-16.) Defendants argue that these causes of action fail because plaintiffs failed to comply with the Government Claims Act. Pursuant to Government Code section 945.4

Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.

(Gov. Code, § 945.4. See also Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612-613 [a claim is also required for actions against public employees for actions taken within the scope of the employees’ employment].)

A tort claim for money damages against a public entity must be filed with the public entity within six months of the accrual of the cause of action. (Gov. Code, § 911.2.) “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2.) “The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) Timely claim presentation is a condition precedent to filing a lawsuit and complaints that do not allege timely claim presentation or cognizable excuses, are subject to a general demurrer. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.)

“When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.” (Gov. Code, § 911.4(a).) “The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (Gov. Code, § 911.4(b).) “The board shall grant or deny the application within 45 days after it is presented to the board. The claimant and the board may extend the period within which the board is required to act on the application by written agreement made before the expiration of the period.” (Gov. Code, § 911.6(a).) “If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day or, if the period within which the board is required to act is extended by agreement pursuant to this section, the last day of the period specified in the agreement.” (Gov. Code, § 911.6(c).)

If an application for leave to present a claim is denied or deemed to be denied pursuant to Section 911.6, a petition may be made to the court for an order relieving the petitioner from Section 945.4. The proper court for filing the petition is a superior court that would be a proper court for the trial of an action on the cause of action to which the claim relates. If the petition is filed in a court which is not a proper court for the determination of the matter, the court, on motion of any party, shall transfer the proceeding to a proper court. If an action on the cause of action to which the claim relates would be a limited civil case, a proceeding pursuant to this section is a limited civil case.

(Gov. Code, § 946.6(a).) “The petition shall be filed within six months after the application to the board is denied or deemed to be denied pursuant to Section 911.6.” (Gov. Code, § 946.6(b).)

Under the Tort Claims Act, complainants alleging claims for money or damages against public entities must file a claim with the entity, and then file a lawsuit only where claims were denied or rejected. (City of Ontario v. Sup. Ct. (1993) 12 Cal. App. 4th 894, 898.) If the claim is denied or rejected, the public entity must provide notice of such in the manner stated in Government Code sections 911.8 or 913. (See Gov. Code, §§ 911.8, 913).) The notice must be served by personal delivery to the person presenting the claim or by mail to the address stated in the claim, but no notice need be given where the claim fails to state an address. (See Gov. Code, § 915.4.)

Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:
(1) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.
(2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action. If the period within which the public entity is required to act is extended pursuant to subdivision (b) of Section 912.4, the period of such extension is not part of the time limited for the commencement of the action under this paragraph.

(Gov. Code, § 945.6(a).)

Because the motion is unopposed, the following facts are undisputed. On 11/29/13, plaintiffs, through their former attorney, submitted a claim for damages to defendant. (DMF 1, 2.) The claims did not make any reference to alleged injuries sustained in October 2013; instead, they generally asserted that defendant did not properly supervise a special education child. (DMF 3, 4; Def. Exhs. G, H.) On 12/12/13, defendant rejected as untimely any portion of the claim based on acts prior to 5/29/13. (DMF 6.) On 3/11/14, defendant rejected the claim in full. (DMF 7.)

On 10/14/14, plaintiffs sought leave from defendant to present a late claim related to Benyamin’s alleged injuries. (DMF 8, 9.) On 12/9/14, defendant rejected these claims as untimely, except for any claim as to acts or incidents dated 10/13/14. (DMF 10.)

On 5/21/15, plaintiffs filed a petition for relief from the claim presentation requirement with this Court. (DMF 11.) The case summary for this action shows that it has been dismissed. (DMF 12.) No court has granted Benyamin leave to present a late claim related to his alleged injuries. (DMF 14.)

Defendants’ evidence is sufficient to meet its burden of showing that there are no triable issues of fact that plaintiffs failed to comply with the claims presentation requirements prior to bringing their action for negligence, violation of the Unruh Act, and violation of the DPA. Plaintiffs’ first claim, served in November 2013, was rejected in March 2014 and defendant provided written notice of the rejection. The evidence suggests that plaintiffs did not therefore file an action within six months. Defendant rejected plaintiffs’ request for leave to present a late claim, plaintiff’s petition for relief has been dismissed, and there is no showing that a court has granted plaintiffs leave to present a late claim. Because the motion is unopposed, plaintiffs fail to provide evidence suggesting that they have sufficiently complied with the government claims requirements.

Moreover, as discussed above, defendants present sufficient evidence to show that there are no triable issues of fact that Benyamin’s injuries were not caused by defendants.

Accordingly, defendants’ request for summary adjudication of the ninth through twelfth causes of action is GRANTED.





SUBJECT: Motion for attorney’s fees

Moving Party: Defendants Los Angeles Unified School District and Giovanni Trivino

Resp. Party: None


Plaintiff is in pro per, and the Court has just granted defendant’s Motion for Summary Judgment, thus ending this case. (See above.) The Court would like to hear from defendant whether they wish to pursue this motion for attorney's fees; if they do, the Court will discuss with the parties whether – in the interest of justice – the court should reduce or eliminate the award of attorney's fees.


BACKGROUND:

Plaintiffs commenced this action against defendants on 6/22/15. Plaintiffs filed a first amended complaint on 10/8/15 against defendants for: violations of the Rehabilitation Act and the ADA, negligence, violation of the Unruh Act and DPA, and violations of mandatory duties. Plaintiff Benyamin suffers from intellectual disabilities and was an adult student enrolled in LAUSD. Homanyoun is Benyamin’s father and conservator. Plaintiffs allege that defendants violated Benyamin’s rights by failing to provide a safe environment, resulting in Benyamin’s injuries. Plaintiffs allege that defendants retaliated against Homanyoum for writing letters regarding Benyamin’s injuries.

On 12/9/15, plaintiffs dismissed defendant Campos from this action, and dismissed the thirteenth and fourteenth causes of action as against defendant Trivino.

On 1/21/16, the Court granted defendants’ special motion to strike as to plaintiffs’ allegations based on the temporary restraining order and complaint to adult protective services in the fifth and sixth causes of action. The motion was otherwise denied.

On 3/2/16, the Court sustained defendants’ demurrer to the thirteenth and fourteenth causes of action.


ANALYSIS:

Defendants seek attorney’s fees in the amount of $16,535.95 against plaintiffs pursuant to Code of Civil Procedure section 425.16.
“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16(c)(1).)

Fees are appropriate for proceedings, including discovery initiated by the opposing party, directly related to the special motion to strike. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248.) Fees are not appropriate to the entire litigation. (See Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92 [“only those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered under section 425.16, subdivision (c)”]; Chambers v. Miller (2006) 140 Cal.App.4th 821, 826 [“the anti-SLAPP statute's attorney fee provision is not designed to provide general monetary relief to SLAPP victims, but only reimbursement for the fees and costs actually incurred in obtaining the dismissal”]; Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2014) ¶ 7:1135 [“Section 425.16(c) is ambiguous as to what ‘fees and costs’ are recoverable. But legislative history shows it was intended to allow only fees and costs incurred on the motion to strike (not the entire litigation)”].)

Defendants’ special motion to strike was granted as to plaintiffs’ allegations based on the temporary restraining order and complaint to adult protective services in the fifth and sixth causes of action, but was otherwise denied. Because the motion was granted at least in part, defendants are entitled to recover attorney’s fees. “[E]ven if the special motion to strike is granted only as to some claims, the partially successful defendant is entitled to attorney fees.” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) “The lack of success on other claims is relevant to the amount of, but not the right to, fees.” (Ibid.)

In determining whether the requested attorney’s fees are “reasonable,” the Court’s “first step involves the lodestar figure – a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.”
(Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].) In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

Defendants’ attorneys sufficiently support their requested hourly rates. (See Evans Decl., ¶¶ 3-5; Widell Decl., ¶¶ 3-5; Park Decl., ¶¶ 3-4; Friend Decl., ¶ 3.)

Plaintiff is in pro per, and the Court has just granted defendant’s Motion for Summary Judgment thus ending this case. (See above.) The Court would like to hear from defendant whether they wish to pursue this motion for attorney's fees; if they do, the Court will discuss with the parties whether – in the interest of justice – the court should reduce or eliminate the award of attorney's fees.

Case Number: BC585967    Hearing Date: January 23, 2017    Dept: 34

Moving Party: Defendants Los Angeles Unified School District and Giovanni Trivino

Resp. Party: None


The Court takes the Motion off-calendar as moot because it granted defendant’s Motion for Summary Judgment on January 20, 2017.

Case Number: BC586078    Hearing Date: January 23, 2017    Dept: 50

ACKERMAN V CHICO'S FAS, INC BC586078

The Court has signed the Corrective Notice and Order. Defendant is ordered to give notice thereof. Appearances at the hearing on Monday, January 23,2017 will not be necessary.

Case Number: BC587615    Hearing Date: January 20, 2017    Dept: 53

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 53


SUNNY KIM,

Plaintiff,


vs.


WILMINGTON SAVINGS FUND SOCIETY, FSB, et al.,

Defendants.
Case No.: BC587615


Hearing Date: January 20, 2017


Time: 8:30 a.m.



[TENTATIVE] ORDER RE:

DEFENDANTS BANK OF AMERICA, N.A. AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S DEMURRER TO FIRST AMENDED COMPLAINT

Defendants BANK OF AMERICA, N.A. and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

BACKGROUND

Plaintiff Sunny Kim (“Plaintiff”) filed this action on July 9, 2015 against numerous Defendants. After a demurrer to the Complaint was filed, but prior to the hearing, Plaintiff filed the operative First Amended Complaint (“FAC”).

This action arises from a dispute over a mortgage on real property located in Los Angeles. (the “Property”). Plaintiff alleges that, on June 17, 2005, she borrowed $382,500 evidenced by a Note and Deed of Trust (“DOT”) in favor of Countrywide Bank (“Countrywide”) encumbering the Property. Plaintiff alleges that Susan Douglas, alleging to be vice president of MERS (the beneficiary under the DOT), executed a document dated September 23, 2011 entitled Assignment of Deed of Trust, transferring all beneficial interest under the DOT together with the promissory note secured by that DOT to Bank of America.

Plaintiff alleges that the assignment is void as it fails to comply with Civil Code section 1095 because MERS signed the assignment in its own name, and not in the name of the principal, nor as attorney in fact of its principal, and MERS does not own the note, nor the DOT nor the beneficial interest in either. Further, Plaintiff alleges that the DOT does not comply with California Probate Code sections 4121 and 4122, such that MERS does not have authority to act as an attorney in fact for Countrywide. Because the initial assignment of the DOT is allegedly void, Plaintiff alleges that all that follows is void, thus rendering any attempts to foreclose on the Property invalid. A foreclosure of the Property took place on July 14, 2015 and a Trustee’s Deed Upon Sale was recorded on July 27, 2015.

The FAC asserts causes of action for (1) quiet title; (2) cancellation of instrument; (3) intentional infliction of emotional distress; (4) wrongful foreclosure; (5) violation of the Federal Fair Debt Collection Practices Act (15 USC §1692); and (6) slander of title.

Defendants Bank of America, N.A. and Mortgage Electronic Registration Systems, Inc. (jointly “Defendants”) now demur to each cause of action of the FAC on the grounds of failure to state facts sufficient to constitute a cause of action.

The demurrer is unopposed.

EVIDENCE

Defendants’ request for judicial notice is granted. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (“a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.”).)

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

DISCUSSION

A. Failure to Allege Tender

Initially, the Court notes that Plaintiff cannot challenge the Trustee’s sale absent a valid tender of the outstanding loan balance. An action to set aside a trustee’s sale for irregularities in sale notice or procedure must be accompanied by an offer to tender the full amount of the debt for which the property was security. (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-579; United States Cold Storage v. Great Western Savings & Loan Assn. (1985) 165 Cal.App.3d 1214, 1222.) “This rule … is based upon the equitable maxim that a court of equity will not order a useless act performed … if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs.” (F.P.B.I. Rehab 01 v. E&G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021.) The tender rule applies to any cause of action that is “implicitly integrated” with the allegations of an irregular sale. (Arnolds, supra, 158 Cal.App.3d at 579.) The rules governing tender “are strict and are strictly applied.” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439.) Nothing short of the full amount due is sufficient to constitute a valid tender. (Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1165.)

Here, the FAC challenges the foreclosure and seeks to cancel all of the recorded foreclosure documents. Accordingly, Plaintiff is required to allege that she tendered, or is willing and able to tender, the outstanding loan balance. No such allegation appears in the FAC.

B. First and Second Causes of Action – Quiet Title and Cancellation of Instrument

The elements of an action to quiet title are: (1) a description of the property; (2) plaintiff’s title or interest and the basis of the title; (3) defendant’s asserted adverse claim; (4) the date as of which the determination is sought; and (5) a prayer for determination of title. (CCP §761.020.) “A mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee.” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.)

To state a cause of action to remove a cloud on title, the plaintiff, instead of pleading in general terms that the defendant claims an adverse interest, must allege, inter alia, facts showing actual invalidity of the apparently valid instrument or piece of evidence. (Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638.)

As discussed above, each of these causes of action fail because Plaintiff does not allege that she is willing or able to tender her indebtedness. These causes of action also fail because, while premised on a violation of Civil Code §1095, the FAC’s allegations do not establish such a violation. Section 1095 provides that: “When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact.” (Civ. C. §1095.) This statute is inapplicable where, as here, the 2011 Assignment was not based on a power of attorney. (See Coburn v. Bank of N.Y. Mellon, N.A. (E.D. Cal. 2011) 2011 WL 1103470, at *3.) Further, even if §1095 were applicable, it is satisfied where, as here, the principal is clearly identified on the face of the assignment. (Gyene v. Steward Fin., Inc. (C.D. Cal. 2013) 2013 WL 146191, at *3.)

C. Third Cause of Action – Intentional Infliction of Emotional Distress

To prevail on an IIED claim, plaintiff must prove: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050). “[L]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, but only to conduct so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng'g, Inc. (1970) 2 Cal.3d 493, 499, n.5.)

“In the context of debt collection, courts have recognized that the attempted collection of a debt by its very nature often causes the debtor to suffer emotional distress.” (Ross v. Creel Printing & Publ. Co. (2002) 100 Cal.App.4th 736, 745.) “An assertion of legal rights in pursuit of one's own economic interests does not qualify as ‘outrageous’ under [the IIED] standard.” (Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1398.) Further, emotional distress damages are not recoverable where the emotional distress arises solely from property damage or economic injury to the plaintiff. (Butler Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1229.) Here, Plaintiff has not sufficiently alleged extreme and outrageous conduct and her alleged damages arise from economic injury. Accordingly, the allegations are insufficient to support an IIED claim.

D. Fourth Cause of Action – Wrongful Foreclosure

To state a claim for wrongful foreclosure, plaintiff must allege “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Lona v. Citibank, NA (2011) 202 Cal.App.4th 89, 104.)

As discussed above, Plaintiff has not alleged tender. Further, Plaintiff’s wrongful foreclosure claim fails against Defendants because the pleadings establish that Defendants had no role in the sale. Plaintiff also has not sufficiently alleged any prejudice. The fact that Plaintiff is facing foreclosure is the result of her not making payments on the loan. The challenged assignments of the Note and DOT had no impact on Plaintiff’s ability to cure her default. To the extent that Plaintiff’s claim is premised on allegations of fraud, Plaintiff has not pleaded fraud with sufficient specificity. (See, e.g., Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614 (to survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the representations were tendered.”).)

E. Fifth Cause of Action – Violation of Federal Fair Debt Collection Practices Act

“In order to establish a claim under the Fair Debt Collections Practices Act, a plaintiff must show: (1) that he is a consumer within the meaning of 15 U.S.C. §§ 1692a(3) and 1692c(d); (2) that the debt arises out of a transaction entered into for personal purposes; (3) that the defendant is a debt collector within the meaning of 15 U.S.C. § 1692a(6); and (4) that the defendant violated one of the provisions of the FDCPA, 15 U.S.C. §§ 1692a–1692o.” (Geist v. OneWest Bank (N.D. Cal. 2010) 2010 WL 4117504 at *2.) “[T]he FDCPA applies to debt collectors, but not to creditors.” (Schlegel v. Wells Fargo Bank, N.A. (N.D. Cal. 2011) 799 F.Supp.2d 1100, 1103.) “The law is well settled that FDCPA's definition of debt collector ‘does not include the consumer's creditors, a mortgage servicing company, or any assignee of the debt.’” (Lal v. Am. Home Servicing, Inc. (E.D. Cal. 2010) 680 F.Supp.2d 1218, 1224.) Further, “the activity of foreclosing on the property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA.” (Hulse v. Ocwen Fed. Bank, FSB (D. Or. 2002) 195 F.Supp.2d 1188, 1204.) Based on this law, Plaintiff has not alleged that Defendants are engaged in debt collection within the meaning of the FDCPA. Accordingly, the fifth cause of action fails.

F. Sixth Cause of Action – Slander of Title

“Slander of title is effected by one who without privilege publishes untrue and disparaging statements with respect to the property of another under such circumstance[s] as would lead a reasonable person to foresee that a prospective purchaser or lessee thereof might abandon his intentions.” (M.F. Farming, Co. v. Couch Distrib. Co. (2012) 207 Cal.App.4th 180, 198 (disapproved on other grounds).) To state a claim for slander of title, a plaintiff must establish the following elements: “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.)

Plaintiff alleges that her title was slandered by Defendants recording false foreclosure documents. However, “the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures [are] privileged communications.” (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333.) Plaintiff fails to plead sufficient facts to defeat this privilege. Plaintiff’s claim also fails because the pleadings establish that Plaintiff no longer owns the Property. As such, Defendants could not have slandered Plaintiff’s title. Accordingly, the sixth cause of action fails.

Defendants are ordered to provide notice of this ruling.

DATED: January 20, 2017



_____________________________
Howard L. Halm
Judge of the Superior Court

Case Number: BC588034    Hearing Date: January 24, 2017    Dept: 98

RUBEN RAMOS, et al.,

Plaintiffs,
vs.

MICHELIN NORTH AMERICA, INC.,
et al.,

Defendants.

CASE NO: BC588034

[TENTATIVE] ORDER GRANTING APPLICATION FOR ADMISSION PRO HAC VICE

Dept. 98
1:30 p.m.
January 24, 2017

James H. Hada (“Applicant”) seeks admission pro hac vice to represent Plaintiffs in this action with Plaintiffs’ attorney of record, Jane M. Braugh, an active member of the State Bar of California. Applicant is a resident of Texas and is currently a member in good standing in each of the courts to which he has been admitted to practice. Applicant has applied to appear pro hac vice in a California state court once within the past two years. He is not regularly employed in California and does not regularly engage in substantial business, professional, or other activities within this state. The State Bar of California has been served with the Application papers and required fees.

The Application is unopposed and GRANTED. It is ordered that James H. Hada is admitted pro hac vice for the purpose of representing Plaintiffs in this action. Mr. Hada shall be subject to all applicable rules of this Court.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 24th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC588085    Hearing Date: January 23, 2017    Dept: 91

The Court has read and considered all pleadings filed in connection with this motion. Counsel may submit on the pleadings or appear for argument at the hearing on the motion and the Court will issue a written ruling.

Case Number: BC588521    Hearing Date: January 23, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY
TRANSFERRED FOR ALL PURPOSES TO JUDGE R. SEE IN DEPT. M OF THE SOUTHWEST DISTRICT, TORRANCE. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC588824    Hearing Date: February 10, 2017    Dept: 98

T.P., a minor, by and through his Guardian ad Litem, DORIS MASON, and his Natural Guardian, TYRA MASON,
Plaintiff,
vs.

LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.,

Defendants.

CASE NO: BC588824

[TENTATIVE] ORDER GRANTING DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT’S MOTION FOR TERMINATING SANCTIONS

Dept. 98
1:30 p.m.
January 10, 2017

On July 29, 2015, Plaintiff T.P., a minor, by and through his Guardian ad Litem, Doris Mason, and his Natural Guardian, Tyra Mason (“Plaintiff”) filed this action against Defendants Los Angeles Unified School District (“LAUSD”) and Daniel Esteez. On May 19, 2016, LAUSD served Plaintiff with Requests for Admission, Set One; Form Interrogatories, Set One; Special Interrogatories, Set One; and Inspection Demand, Set One. Declaration of Jamie E. Wright, ¶ 4. On September 19, 2016, this Court granted LAUSD’s unopposed Motions to compel Plaintiff’s responses to these discovery requests and ordered Plaintiff to pay monetary sanctions. Id., ¶ 15. Plaintiff has failed to provide the Court-ordered responses or monetary sanctions. Id., ¶ 16. LAUSD therefore now moves for terminating sanctions against Plaintiff.

The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. Cal. Code of Civ. Proc., § 2023.030(d). Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. Id., §§ 2023.010(d), (g). A terminating sanction may be imposed by an order dismissing part or all of the action. Id., §§ 2023.030(d)(3). “‘Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply … and (2) the failure must be willful.’” Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008) 163 Cal.App.4th 1093, 1102. Terminating sanctions should not be ordered lightly, but “where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.

The Court finds that Plaintiff has engaged in misuse of the discovery process both by failing to respond to LAUSD’s discovery requests and by disobeying a court order to provide discovery. The Court concludes that anything less severe than a terminating sanction would not result in compliance. Further, there is no evidence suggesting that Plaintiff’s failure to comply with the Order was not willful. Therefore, LAUSD’s unopposed Motion for terminating sanctions is GRANTED. Plaintiff’s Complaint as to LAUSD hereby is dismissed.







Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 10th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC589206    Hearing Date: January 25, 2017    Dept: 98

MIKE HONG dba C & J BEAUTY SUPPLY,
Plaintiff,
vs.

IGOR ROMANOV LLC, et al.,

Defendants.


CASE NO: BC589206

[TENTATIVE] ORDER RE: DEFENDANTS IGOR ROMANOV LLC AND ACI DEVELOPMENT LLC’S MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSION, SET ONE ADMITTED

Dept. 98
1:30 p.m.
January 24, 2017

On July 27, 2015, Plaintiff Mike Hong dba C & J Beauty Supply (“Plaintiff”) filed this premises liability for alleged damages arising out of a December 18, 2013 incident at 12717 Hawthorne Boulevard, Hawthorne, California 90250. On April 18, 2016, Defendants Igor Romanov LLC and ACI Development LLC (“Moving Defendants”) served Plaintiff with Requests for Admission, Set One. Declaration of Richard L. Scott, ¶ 2. Plaintiff has failed to provide any responses. Id., ¶ 3. Moving Defendants therefore now move for an order deeming admitted the truth of each matter specified in their outstanding Requests for Admission, Set One.

The Court notes that the address for Plaintiff’s counsel is listed as 8484 Wilshire Boulevard, Suite 450, Beverly Hills, California 90211 on the Complaint and that there has been no notice of a change of address in this matter. The Court also notes that this Motion was served on the same opposing counsel, but at 8500 Wilshire Boulevard, Suite 916, Beverly Hills, California 90211. Without any explanation as to why service was made at an address other than the one on record for Plaintiff’s counsel, the Court finds notice of this Motion to be deficient.

In addition, Moving Defendants were granted Summary Judgment on January 3, 2017. In light of the foregoing, Moving Defendants’ Motion is MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 24th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC589388    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


RODOLFO ROSALES,

Plaintiff,


vs.


EULALIA ESPINOZA,

Defendant.
Case No.: BC589388


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION TO COMPEL DEPOSITION OF PLAINTIFF

Defendant Eulalia Espinoza’s Motion to Compel Deposition of Plaintiff is GRANTED. Plaintiff Rosales is ordered to appear for deposition within the next 10 days.

The Court awards sanctions in favor of defendant and against plaintiff’s counsel Kinkle, Rodiger and Spriggs in the amount of $360 to be paid within 30 days.
The Court considered the moving papers. No opposition was filed.
BACKGROUND
On July 28, 2015, Rodolfo Rosales filed a complaint against Eulalia Espinoza for motor vehicle negligence based on an incident that occurred on August 27, 2014, in Culver City.
DISCUSSION
Defendant requests an order to compel plaintiff to appear for his deposition.
Under CCP §2025.450(a), “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.
A motion to compel deposition must be accompanied by a meet and confer declaration under CCP §2016.040. CCP §2025.450(b)(2).
On November 11, 2016, defendant served plaintiff with a deposition notice for November 28. Plaintiff failed to appear. On November 29, 2016, defense counsel sent a meet and confer letter to plaintiff’s counsel regarding plaintiff’s failure to appear. Defense counsel requested plaintiff’s counsel to contact him within ten days to reschedule the deposition. Defense counsel purportedly did not respond.
As defendant properly served plaintiff with a notice of deposition and plaintiff failed to appear, the motion is GRANTED.
If a motion to compel deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP §2025.450(g)(1).
Defendant requests sanctions against plaintiff and his counsel of record in the amount of $810 ($150/hr. x 1 hr. draft motion, 1 hrs. review opp/draft reply, 3 hrs. travel/appearance; filing fee). The Court finds $360 (2 hrs., filing fee) to be a reasonable amount.
There is no need for defense counsel to personally appear at the hearing, as this can be done by submission or via court call.
These sanctions, however, are awarded against plaintiff’s attorney only, as there is no evidence that plaintiff’s failure to respond was the fault of plaintiff. It is plaintiff’s attorney who has failed to respond to any inquiries, as well as to this motion. Clearly, there is no “substantial justification” demonstrated for this utter lack of response.
Defendant Espinoza is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC589594    Hearing Date: January 20, 2017    Dept: 39

Stanley V. Langevin, et al v. FedEx Corporation, et al., BC589594

Motion by Plaintiffs Mark Collins and Stanley Langevin’s to Compel Deposition Testimony from Defendants Steven B. Sobczak, William Cusato, Jack Earls, Traci May-Hill, and Jim Doty: the motion is MOOT as to Defendants May-Hill and Doty. The motion is GRANTED as to Sobczak, Cusato, and Earls.

These deponents, Sobczak, Cusato, and Earls, are to sit for their deposition by February 10, 2017.

The court also finds that imposition of monetary sanctions is warranted, pursuant to Code of Civil Procedure § 2025.450(g)(1). The court grants Plaintiffs' request for monetary sanctions against Defendants and their counsel of record in the amount of $2,112.50. Sanctions are due and payable by February 10, 2017.

Case Number: BC590878    Hearing Date: January 24, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS NOT A PERSONAL INJURY CASE AS DEFINED IN THE COURT’S MOST RECENT GENERAL ORDER RE: GENERAL JURISDICTION PERSONAL INJURY CASES.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY TRANSFERRED FOR ALL PURPOSES TO JUDGE R. DUKES IN DEPT. O OF THE EAST DISTRICT, POMONA. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC592947    Hearing Date: January 24, 2017    Dept: 97

38

NOEMI SOZA,
Plaintiffs, et al.,
v.

SHARON LEE ANDERSON, et al.,

Case No.: BC592947

Hearing Date: January 24, 2017

[TENTATIVE] ORDER RE:
(1) MOTION TO CONSOLIDATE

(2) MOTION TO CONTINUE TRIAL
MOTION TO CONSOLIDATE
Defendant/Cross-Defendant/Cross-Complainant Sharon Lee Anderson (“Anderson”) moves to consolidate cases BC592947 and BC634971. Case BC592947 is currently assigned to Department 97 while BC634971 is assigned to Department 98.
“Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.” (Local Rule 3.3(g).)
Since cases BC592947 and BC634971 are not assigned to the same department, the Court cannot grant Anderson’s request to consolidate without first relating the cases. (CRC Rule 3.300.) The Court further notes that this Court cannot relate the two cases because CRC, Rule 3.300(d) requires that a Notice of Related Case must be filed in all pending cases listed in the notice and a Notice of Related Case has not been filed in BC592947.
Anderson’s motion is denied without prejudice. The Court notes that it would have been inclined to grant consolidation had both cases been assigned to this department.
MOTION TO CONTINUE TRIAL
Anderson seeks to continue trial and related dates to a date that is at least six months away from the current trial date. Trial is current scheduled for February 27, 2017. Anderson argues that a trial continuance is warranted because this case will soon be consolidated with BC634971 and, inter alia, BC634971 is in the early discovery phase.
No party has filed a written opposition to the present motion.
Anderson’s request to continue trial is granted based upon good cause shown. (CRC, Rule 3.1332.) Trial is continued to August 29, 2017, at 8:30 a.m. in this department. Final status conference is continued to August 15, 2017, at 10:00 a.m. in this department. All discovery, motion, and expert cut-off dates will be tied to the new trial date.
Anderson is ordered to provide notice of this entire order.

Case Number: BC593071    Hearing Date: January 23, 2017    Dept: 97

RAISA KHARCHENKO, ) Case No.: BC593071
)
Plaintiffs, ) ORDER TRANSFERRING COMPLICATED
vs. ) PERSONAL INJURY (PI) CASE TO AN
) INDEPENDENT CALENDAR (IC) COURT
ARCADIA ADULT DAY CARE CENTER, LLC, )
Defendants. )
__________________________________________ )

DEPARTMENT 97 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION:

1. __ IS NOT A PERSONAL INJURY CASE AS DEFINED IN THE COURT’S MOST RECENT GENERAL ORDER RE: GENERAL JURISDICTION PERSONAL INJURY CASES, OR

2. X IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.
AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:

1. __ TRANSFERRED AND REASSIGNED TO THE ENTER DISTRICT. DISTRICT, DEPT ENTER DEPT. NUMBER.. ALL FUTURE PROCEEDINGS WILL BE BEFORE A JUDGE SELECTED BY THE SUPERVISING JUDGE IN THAT DISTRICT. THE PARTIES WHO HAVE APPEARED IN THE CASE WILL RECEIVE A NOTICE OF CASE REASSIGNMENT TO AN INDEPENDENT CALENDAR (IC) COURT FOR ALL PURPOSES FROM THE COURTHOUSE. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCES, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

2. X TRANSFERRED FOR ALL PURPOSES TO JUDGE ELIZABETH FEFFER IN DEPT. 39 OF THE CENTRAL DISTRICT.

ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC593260    Hearing Date: January 20, 2017    Dept: 97

KOTCHAPAN ) Case No.: BC593260
PHOTHICHAROENTHANACHOK, )
Plaintiffs, ) ORDER TRANSFERRING COMPLICATED
vs. ) PERSONAL INJURY (PI) CASE TO AN
) INDEPENDENT CALENDAR (IC) COURT
Baramee corp., )
Defendants. )
__________________________________________ )

DEPARTMENT 97 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION:

1. __ IS NOT A PERSONAL INJURY CASE AS DEFINED IN THE COURT’S MOST RECENT GENERAL ORDER RE: GENERAL JURISDICTION PERSONAL INJURY CASES, OR

2. X IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.
AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:

1. __ TRANSFERRED AND REASSIGNED TO THE ENTER DISTRICT. DISTRICT, DEPT ENTER DEPT. NUMBER.. ALL FUTURE PROCEEDINGS WILL BE BEFORE A JUDGE SELECTED BY THE SUPERVISING JUDGE IN THAT DISTRICT. THE PARTIES WHO HAVE APPEARED IN THE CASE WILL RECEIVE A NOTICE OF CASE REASSIGNMENT TO AN INDEPENDENT CALENDAR (IC) COURT FOR ALL PURPOSES FROM THE COURTHOUSE. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCES, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

2. X TRANSFERRED FOR ALL PURPOSES TO JUDGE SUSAN BRYANT-DEASON IN DEPT. 52 OF THE CENTRAL DISTRICT.

ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC593269    Hearing Date: January 24, 2017    Dept: 97

39

CHRISOVALATIOUS KELESSIDIS,
Plaintiff,
v.

SAYAMOL KLUNMALEE, et al.,
Defendants.

AND RELATED CROSS-ACTIONS

Case No.: BC593269
Hearing Date: January 24, 2017
ORDER RE:
MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

The motion of Defendant/Cross-Defendant Sayamol Klunmalee (“Defendant”) is unopposed.
An unopposed motion for determination of good faith of settlement, such as this, need not contain a full and complete discussion of the Tech-Bilt factors (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488) by declaration or affidavit; rather, a bare bones motion setting forth the grounds of good faith and a declaration containing a brief background of the case is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) However, here, Defendant has provided a thorough discussion of the background of the case and an analysis of the Tech-Bilt factors.
As this motion for determination of good faith of settlement contains sufficient information and is not contested, Defendant’s motion is granted. The settlement between Plaintiff Chrisovalatious Kelessidis (“Plaintiff”) and Defendant is a good faith settlement pursuant to CCP § 877.6. All claims against Defendant for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault are barred. (CCP § 877.6(c).)
Defendant is ordered to provide notice of this order.

Case Number: BC593597    Hearing Date: January 20, 2017    Dept: 32

TINA AKHKASHIAN;

Plaintiff,


vs.


LEVON AKHKASHIAN, et al.;

Defendants.
Case No.: BC593597


Hearing Date: January 20, 2017


[TENTATIVE] ORDER RE:

PLAINTIFF TINA AKHKASHIAN’S MOTIONS TO COMPEL DEFENDANT KHACHIK AKHKASHIAN’S INITIAL VERIFIED RESPONSES TO:

(1) FIRST SET OF FORM INTERROGATORIES;

(2) FIRST SET OF SPECIAL INTERROGATORIES; AND

(3) FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS; AND

REQUESTS FOR MONETARY SANCTIONS


BACKGROUND
This is a real property dispute between plaintiff Tina Akhkashian (“Tina”) and her separated husband, defendant Khachik Akhkashian (“Khachik”), as well as his father-in-law and mother-in-law, defendants Levon Akhkashian (“Levon”) and Srbouhi Akhkashian (“Srbouhi”). HighTechLending, Inc. (“HTL”), which holds a deed of trust recorded against the subject real property—located at 3859 Sky View Lane in Glendale, California—is also named as a defendant.
Tina alleges that, in October 2010, she and Khachik conveyed title to the subject property to Khachik’s father (Levon), who would essentially hold the real property in a secret trust for their benefit. However, in January 2015, Tina and Khachik separated. Tina initiated divorce proceedings the following month. The divorce action—Case No. BD615933—is still pending. (The divorce action has not yet been deemed related to the instant action.) Thereafter, Khachik, Levon and Srbouhi denied that Tina had any interest in the subject property. They are demanding that she vacate the property.
Per the operative Verified Complaint, filed on September 4, 2015, Tina is asserting six causes of action for: (1) quiet title against all defendants; (2) fraud against Levon, Khachik and Srbouhi; (3) “equitable lien” against Levon; (4) “constructive trust” against Levon; (5) unjust enrichment against Levon, Khachik and Srbouhi; and (6) declaratory relief against all defendants. (There are no causes of action for imposition of an equitable lien or a constructive trust recognized under California law.)
On September 29, 2016, Tina filed the three instant motions to compel Khachik’s initial verified responses to her first sets of form interrogatories, special interrogatories and requests for production of documents. Initially noticed for November 30, 2016, these motions were subsequently continued to January 20, 2017. Khachik filed his opposition papers on January 4, 2017. (No reply papers were filed.)
Also on September 29, 2016, Tina filed another three motions to compel the same responses from Levon. These motions were eventually continued to January 18, 2017. Although the motions were deemed moot, a monetary sanction of $2,460 was imposed against Levon only. No sanctions were imposed against his counsel of record.

LEGAL STANDARD
A party on whom written discovery has been served, must provide an initial verified response within 30 days of service. (Code Civ. Proc., §§ 2030.260(a), 2031.260(a).) An extra five days will be allotted where service occurs by mail. (Id., § 1013.) Failure to respond in a timely manner results in the waiver of objections, including those objections based on attorney-client privilege and work product. (Id., §§ 2030.260(a), 2031.260(a).)
If verified responses to interrogatories or requests for production of documents (“RFP”) are not provided, the propounding party may move for an order compelling initial responses without objections. (Id., §§ 2030.290(b), 2031.300(b).) They not attempt to meet-and-confer with the nonresponsive party; nor must they demonstrate “good cause” for production of documents. These motions may be brought at any time. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)

DISCUSSION
Per the opposition papers, it appears that Khachik served objection-free verified responses to the subject discovery on October 20, 2016—after the three instant motions were filed. (See Coelho Decl., Exs. A-C.) Accordingly, the instant motions are deemed to be substantively MOOT—no responses will be ordered.
Unless it would be unjust to do so under the circumstances, the Court imposes monetary sanctions on parties and/or attorneys that unsuccessfully oppose motions for orders compelling initial responses to written discovery without substantial justification. (See Code Civ. Proc., §§ 2030.260(c), 2031.260(c).) Sanctions are also appropriate when late responses are served after the motion is filed. (See Sinaiko Healthcare Consulting, supra, 148 Cal.App.4th at pp. 409-10.) The latter is the case here. The imposition of a reduced monetary sanction is warranted.
For each motion, Tina requests a monetary sanction of $847.50. This figure reflects 1.5 hours of attorney time billed at $525/hr. ($787.50), as well as a $60 filing fees. (See Marks Decl., ¶ 8.) Although somewhat high, moving counsel’s hourly rate is reasonable. However, the number of hours requested in connection with each motion is excessive—particularly in view of moving counsel’s experience and the substantial similarity between motions. Consequently, Tina will be awarded only two hours of attorney time for all three motions ($1050), as well as three sets of filing fees ($180). A single monetary sanction of $1230 is imposed against Khachik only. No sanctions will be imposed against Khachik’s counsel of record.
Accordingly, Khachik is ordered to pay $1230 to Tina, through her counsel of record (Leslie Steven Marks of Wolf, Rifki, Shapiro, Schulman & Rabkin LLP), within 20 days of notice.
Tina is ordered to provide notice of this ruling.

Case Number: BC593647    Hearing Date: January 27, 2017    Dept: 46

Case Number: BC593647
SPIRITED GROUP III LLC VS 819 S FLOWER LP ET AL
Filing Date: 09/03/2015
Case Type: Declaratory Relief Only (General Jurisdiction)

1/27/2017
OSC RE Dismissal (After Settlement)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
The case was reported settled on 8/30/2016, almost 6 months ago. However, the matter has been called on OSC regarding dismissal after settlement twice, on 10/17/2016 and 11/28/2016. The OSC was continued again to 1/27/2017 on the parties’ request. There is no declaration of facts indicating any good cause not to dismiss this action.
Accordingly, the case is ordered dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of any settlement pursuant to CCP §664.6.
IT IS SO ORDERED:

Frederick C. Shaller, Judge

Case Number: BC593925    Hearing Date: January 20, 2017    Dept: 73

1/20/17
Dept. 73
Rafael Ongkeko, Judge presiding

MADRID vs. CALIFORNIA FAIR PLAN, etc., et al. (BC593925)

Counsel for plaintiff: Steven Zelig (WLA, etc.)
Counsel for defendant California Fair Plan (CFPA): Elise Klein; Celia Moutes-Lee; Kayla Berlin (Lewis, etc.)
Counsel for defendant Larry H. Warne, etc. (Warne defendants): Patrick Campbell (Hollingshead, etc.)
Counsel for defendant Ken’s Roofing, Inc.(KRI): Philip Kraft (Kraft, etc.)
Other counsel: Omitted.

DEFENDANT CALIFORNIA FAIR PLAN ASSOCIATION’S DEMURRER TO SECOND AMENDED COMPLAINT

DEMURRER OF DEFENDANT LARRY H. WARNE, AN INDIVIDUAL DBA LARRY H. WARNE CONSTRUCTION TO SECOND AMENDED COMPLAINT OF CARLOS MADRID; MOTION TO STRIKE PUNITIVE DAMAGES

Tentative ruling:
Fair Plan’s requests for judicial notice:
1. RJN filed 11/10/16: Grant.
2. RJN filed 1/10/17: Deny.
Fair Plan’s and Warne’s demurrer: Sustain without leave as to Plaintiff Madrid’s causes of action based on his lack of an insurable interest. Warne’s motion to strike is moot. Grant leave to amend to allege a reformation cause of action on behalf of Pacific Ocean Properties, Inc. (see Gillis v. Sun Ins. Office, Ltd. (1965) 238 Cal.App.2d 408, 413-414. It is premature at this time to decide any limitations issues.

Instructions/order re leave to amend and red-line version:
NEW AND AMENDED LEGISLATION REGARDING DEMURRERS AND AMENDED PLEADINGS (EFFECTIVE 1/1/16 THROUGH 1/1/21): All parties and counsel are referred to Code of Civil Procedure §§ 430.41; 472; and 472a regarding, but not limited to, the following areas: pre-demurrer timely meet and confer efforts; declaration re same; limit on the number of amendments permitted; prohibited grounds for demurrer; and the deadline to file an amended pleading without stipulation or leave of court.
Subject to the meet and confer requirement below: Plaintiff is granted leave to file and serve by
JAN. 30, 2017 a THIRD AMENDED COMPLAINT. A red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendant(s). If any defendant intends to file a demurrer to the amended complaint, that defendant must file and serve its demurer within 10 days of plaintiff’s service date and demurring defendant must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.
Meet and confer requirement (effective 1/1/16 through 1/1/21): The court orders the parties to meet and confer before the amended complaint (or cross-complaint) or demurrer to the amended complaint (or cross-complaint) is filed.
Any failure to comply with this order by any party may result in an order to show cause why monetary and/or other sanctions should not be imposed.

Unless waived, notice of ruling by moving parties.

Case Number: BC594876    Hearing Date: January 20, 2017    Dept: 91

Plaintiff’s unopposed Motion for Leave to Amend Complaint, filed on 11/18/16, is GRANTED Cal Code Civ Procedure § 473(a)(1).

The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica 6 Cal.3d 920 (1972). If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court 172 Cal.App.2d 527 (1959).

The motion is timely made, and there is no showing of prejudice. The court finds good cause to file the First Amended Complaint as reflected in Plaintiff’s Exhibit B.

Moving party is ordered to give notice.

Case Number: BC596399    Hearing Date: January 24, 2017    Dept: 46

Case Number: BC596399
EDITH CUEVAS VS KELLY BRENTNER
Filing Date: 09/30/2015
Case Type: Wrongful Eviction (General Jurisdiction)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
The court has received a Notice of Settlement of the entire action which was filed on 1/13/2017. Therefore the Trial (2/8/2017) and FSC (1/24/2017) dates are advanced and vacated.
The Notice indicates that the case will be dismissed by 2/28/2017. Accordingly Plaintiff is ordered to dismiss the action by 2/28/2017 or file a declaration by that date indicating good cause why the matter cannot be dismissed. OSC regarding dismissal after settlement is set for hearing on 3/7/2017 at 8:30 a.m. in Dept. 46.
IT IS SO ORDERED: Frederick C. Shaller, Judge

Case Number: BC596708    Hearing Date: January 20, 2017    Dept: 98

ETHEL RICHARDS,
Plaintiff,
vs.

PROS 360 – PERFORMANCE CONTRACTOR, INC., et al.,
Defendants.

Case No.: BC596708

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES

Dept. 98
10:00 a.m.
January 20, 2017

On October 2, 2015, Plaintiff Ethel Richards (“Plaintiff”) filed this action for alleged damages arising out of an April 5, 2014 vehicle collision. On October 26, 2016, Plaintiff filed the instant Motion to Compel further responses. The parties engaged in an Informal Discovery Conference on November 1, 2016 and were instructed to provide a Joint Statement of remaining issues by January 9, 2017. As of January 17, 2017, no Joint Statement has been filed. Therefore, Plaintiff’s Motion is taken off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC597374    Hearing Date: January 20, 2017    Dept: NCD

TENTATIVE RULING

MOTIONS TO COMPEL FURTHER RESPONSES TO INTERROGATORIES AND DOCUMENT DEMANDS (2)
(CCP § 2030.300, et seq.)

Calendar: 10
Date: 1/20/17
Case No: BC 597374 Trial Date: June 26, 2017
Case Name: Cazarez v. BVCV Operating Company, LLC dba Monte Vista Healthcare Center

Moving Party: Plaintiff Guadalupe Cazarez, through her successor in interest
Responding Party: Defendant Methodist Hospital of Southern California

RULING:
Plaintiff’s Motion to Compel Further Responses from Defendant Methodist Hospital of Southern California to Special Interrogatories, Set Two, is GRANTED.

The court will order the sending of a letter to all responsive witnesses to Special Interrogatories, Set Two, Nos. 31 and 32 in the basic format set forth at Exhibits 6 and 7. The court finds that while the contact information of patients and responsible parties may have been provided to the facility by patients with an expectation of privacy, this is a situation where identities have not been disclosed, so that the proposed opt-in process such that the patients’ very existence would not be disclosed by the facility without advance assent appears to be not a serious invasion of privacy, and that when weighed against plaintiff’s strong interest in obtaining this relevant information concerning potential percipient witnesses is strong, that such a procedure would further fairness in the conduct of the litigation, and that the consequences of restricting access to the information would unfairly prejudice plaintiff.

The parties are ordered to meet and confer concerning modifying the letter to clearly indicate that the responsive witness’s identity will not be disclosed to plaintiff’s counsel without permission, and to clearly state that if the recipient does nothing, no information of any kind will be disclosed to plaintiff’s counsel. The parties are also ordered to jointly draft a protective order limiting the use of the information obtained through this mechanism to use in this litigation. The parties are also ordered to identify a third party servicer to handle the mailing and receipt of responses, as the court will not order defendant to make the mailing directly. The court is also not inclined to require notification concerning the number of letters sent.

Plaintiff’s Motion to Compel Further Responses from Defendant Methodist Hospital of Southern California to Request for Production of Documents, Set One, is GRANTED. The court finds the pleadings and argument submitted by both sides confusing, as the further responses to each of the subject interrogatories is “None.” No objections are asserted. The court interprets such responses to be incomplete statements of inability to comply, in effect, a representation that defendant has no responsive documents. The court is accordingly confused by the arguments in the opposition that privacy objections are justified. Defendant is ordered to serve further full and complete responses which fully comply with CCP § 2031.210, pursuant to which response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection. Any objection or statement of inability to comply must strictly comply with the statutory requirements governing such responses.

Any further motion to compel may be brought only after a meet and confer on each issue remaining in dispute, and each side is to be mindful of its burdens with respect to any further objections and motions.

RELIEF REQUESTED:
Further Responses to Special Interrogatories, Set Two, with order to send out letter, etc.
Further Responses to Request for Production of Documents, Set One

MONETARY SANCTION
No monetary sanctions sought

CHRONOLOGY
Date Discovery served : June 8, 2016
Date Responses served: Further September 13, 2016
Date Motion served: October 7, 2016 timely
Meet and Confer? Not clear conferred over further responses

FACTUAL BACKGROUND:
Plaintiff Guadalupe Cazarez, deceased, brings this action through her successor in interest, Irene Baze, who also sues individually, alleging that while a resident at defendant Monte Vista Healthcare Center, as well as during admissions to defendant Methodist Hospital, defendants failed to address Cazarez’s worsening pressure ulcer, and failed to properly address a g-tube site, and that decedent was also subject to dehydration and malnutrition, and other neglect, such as failure to provide personal hygiene and repositioning of a bed bound patient, and that decedent ultimately died as a result of her injuries.

ANALYSIS:
Interrogatories
Under CCP sec. 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “discovery may relate to the claim or defense of the party seeking discovery or of any other party,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any...tangible thing.”



CCP sec. 2030.300(a) provides that if the party propounding interrogatories deems that an objection is without merit or too general or that “an answer to a particular interrogatory is evasive or incomplete”, “the propounding party may move for an order compelling a further response...”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Id. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;
The likelihood that disclosure will be of practical benefit to the party seeking discovery;
The burden or expense likely to be encountered by the responding party in furnishing the information sought.
Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

The motion concerns two Special Interrogatories, Nos. 31 and 32.

Special Interrogatory No. 31 requests:
“Please IDENTIFY each patient of the HOSPITAL who developed a DECUBITUS ULCER at the HOSPITAL during the time period PLAINTIFF was a patient in the HOSPITAL and two years prior to her hospitalization.”

Special Interrogatory No. 32 requests the identification of the “RESPONSIBLE PARTY” for each such patient.

The responses are an objection that the interrogatories seek to invade the privacy rights of other patients, in violation of HIPPA, the privacy rights under the California Constitution, and the physician-patient privilege under Evidence Code § 994.

The motion seeks to have this information provided through an opt-in letter method, whereby defendant will send out a letter to all responsive witnesses to the interrogatories, seeking the residents’ or patients’ and responsible parties’ affirmative assent to disclosure of their contact information to plaintiff’s counsel. The argument is that the only way that plaintiff’s counsel could learn the individual’s names and contact information is for the witness to affirmatively consent to the provision of the information. If the patient or responsible party responds and permits the contact, then any privacy concerns are formally waived, so the privacy analysis need not be performed here.

Plaintiff argues that this process is in keeping with the HIPPA regulations pertaining to protected health information, which provide that a covered entity such as defendant may disclose such information without the written authorization of the protected individual in response to an order of the court, and in response to a discovery request not accompanied by an order of the court, where the covered entity, receives satisfactory assurance that the individual whose information is sought has been given notice of the request.


Under 45 C.F.R. 164.502:
“(a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter.

(1) Covered entities: Permitted uses and disclosures. A covered entity is permitted to use or disclose protected health information as follows:

(i) To the individual;

(ii) For treatment, payment, or health care operations, as permitted by and in compliance with § 164.506;

(iii) Incident to a use or disclosure otherwise permitted or required by this subpart, provided that the covered entity has complied with the applicable requirements of §§ 164.502(b), 164.514(d), and 164.530(c) with respect to such otherwise permitted or required use or disclosure;

(iv) Except for uses and disclosures prohibited under § 164.502(a)(5)(i), pursuant to and in compliance with a valid authorization under § 164.508;

(v) Pursuant to an agreement under, or as otherwise permitted by, § 164.510; and

(vi) As permitted by and in compliance with this section, § 164.512, § 164.514(e), (f), or (g).
(Emphasis added).

Under 45 C.F.R. 164.512:
“A covered entity may use or disclose protected health information without the written authorization of the individual, as described in § 164.508, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section, subject to the applicable requirements of this section. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or disclosure permitted by this section, the covered entity's information and the individual's agreement may be given orally….
(e) Standard: Disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);
(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and
(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.
(iv) For the purposes of paragraph (e)(1)(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or
(B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.
(vi) Notwithstanding paragraph (e)(1)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(v) of this section.”
(Emphasis added).

Plaintiff relies on Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, and Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, and its progeny.

In Colonial Life, the California Supreme Court addressed an action for damages against an insurance company alleging unfair claims settlement practices, breach of contract and breach of the duty of good faith and fair dealing, in which the trial court permitted plaintiff to discover the names, addresses and records of other insureds whose claims were negotiated by the same claims adjuster who handled plaintiff’s claims. The trial court approved a letter to be sent to the other insureds requesting that they consent to the release of their records by the insurer, and expressly prohibited the parties and counsel from initiating any contact with nonparty insurance claimants pending their response to the letter, with no restraint placed on any party regarding claimants who responded to the letter. Colonial Life, at 789. The court issued an additional protective order preventing plaintiff’s counsel for disclosing to any other person the names, addresses or records of nonparties or from making use of the information except for preparation for trial and trial in this action. The Court found these orders appropriate, and rejected an argument that the trial court had improperly failed to issue a clarification of the order prohibiting plaintiff’s attorney from seeking employment from other claimants or encouraging other claimants to file a lawsuit against the insurer.

In Pioneer Electronics, the California Supreme Court addressed the issue of whether a complaining purchaser possesses a right to privacy protecting him or her from unsolicited contact by a class action plaintiff seeking relief from the vendor to whom the purchaser’s complaint was sent. The court found that the trial court’s order in that case ordering the vendor to inform the approximately 700 to 800 complaining customers by letter about the lawsuit, plaintiff’s request for identifying information in order to contact them, and their right to object to the release of that information, was not unduly violative of the privacy of the customers.

Plaintiff also relies on Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, in which the Second District addressed a situation where plaintiff had brought an action against his employer for alleged wage and hour violations, and sought through Form Interrogatory No. 12.1 the contact information of other employees as potential percipient witnesses. The employer in that case had identified by name and position between 2,600 and 3,000 employees. The trial court granted a motion to compel a further response to the interrogatory, and ultimately approved a process whereby a third party administrator sent a letter to each affected individual informing them of the request for their address and phone number in connection with the litigation and permitting the individuals to give their permission, or to opt out.

The Second District granted a writ of mandate and held that the trial court had abused its discretion in placing obstacles to plaintiff’s obtaining the contact information.

The Second District reviewed the standards applicable to the privacy analysis in connection with contact information, balanced the need for the information against the intrusiveness into the privacy of individuals, and concluded that the contact information was discoverable.

The Second District set forth the following standard to be applied in privacy analysis cases, as articulated by the California Supreme Court in Pioneer Electronics:
“First, a claimant must possess a “legally protected [*1251] privacy interest.” (Hill, at p. 35.) Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. (Id. at pp. 36–37.) Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Trivial invasions do not create a cause of action. (Id. at p. 37.) If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information. (Pioneer, at pp. 370– 371.)”
Puerto, at 1250-1251.

The Second District’s discussion of the issue very broad, and assumes that a propounding party would be entitled to discover the identities of all potential percipient witnesses in cases like the one before it:
“As the Supreme Court pointed out in Pioneer, the information sought by petitioners here—the location of witnesses—is generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.) In some respects, the potential intrusion here is even less significant than that in Pioneer, because here the requested disclosure does not involve individuals' identities, which had already been disclosed by Wild Oats prior to the filing of the motion to compel. There simply is no evidence that disclosure of the contact information for these already identified witnesses is a transgression of the witnesses' privacy that is “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” (Hill, supra, 7 Cal.4th at p. 37.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses' residential contact information. Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter. In Morales v. Superior Court (1979) 99 Cal. App. 3d 283 [160 Cal. Rptr. 194], the court concluded that while the discovery of names, addresses, and telephone numbers of persons with whom the plaintiff had extramarital affairs was relevant to the subject matter of the action, the compelled disclosure of that information would violate the participants' privacy rights and was not necessary to obtain a fair trial: a fair trial could be had by compelling the plaintiff to disclose whether and when he had extramarital affairs without giving the identities and contact information of the other participants. Obviously, that is not the case here, because the discovery is designed to identify witnesses rather than to establish facts about the existence of relationships. For Wild Oats to disclose whether it had employees and how many employees it had would not be adequate under these circumstances; petitioners need to talk to the witnesses.”
Puerto, at 1254.

The Second District noted:
“The individuals whose contact information is sought here have been identified as potential witnesses in response to written discovery. These current and former employees are potential percipient witnesses to the occupational duties of petitioners, the primary issue in this litigation, and as such their locations are properly discoverable. (§ 2017.010.)
Puerto, at 1255.

Here, there is no question that the information was likely provided by patients with an expectation of privacy, and this is a situation where their identities have not been disclosed. This process, if it is conducted so that the patients’ very existence would not be disclosed by the facility without advance assent appears to be a less onerous invasion of privacy than in the Puerto scenario.

In addition, plaintiff has established a strong interest in obtaining this information, as defendant is clearly not prepared to indicate in discovery that it knows of no witnesses to the various issues raised by this Elder Abuse action, which seeks to establish a pattern of failing to appropriately address the development of decubitus ulcers, as well as ratification of such conduct by managing agents, when plaintiff is now deceased and other witnesses may be necessary to describe her care and treatment at the time. These issues will require information from percipient witnesses which could well include the patients at the hospital during the time this information is requested. Fairness to plaintiff in conducting this litigation, particularly when the information will not be otherwise disclosed, appears to favor employing this approach, and the consequences of restricting access to the information appear to be that defendant will be in a position to select witnesses favorable to its position while effectively preventing plaintiff from access to those not so favorable.

The only potential gap here, which appears to be the argument in the opposition, is that it is not entirely clear what has been done to identify witnesses through less intrusive means, such as by propounding an interrogatory asking if there are in fact any such witnesses, or asking staff during depositions, or pursuing the records held by licensing agencies with respect to previous complaints. However, the proposed solution appears to present no adverse consequence to either the patients or the defendant, other than that plaintiff may obtain information from interested patients concerning plaintiff or the care given to other patients.

The proposed letter is attached to the motion as Exhibit 6. The letter appears straightforward, and requests that the person receiving it decide whether to authorize the hospital to disclose personal contact information, and includes a return form (Exhibit 7).

The letter appears to provide appropriate notice, although it should probably make clearer that the person’s identity will not be disclosed to plaintiff’s counsel without permission, and, the letter does not clearly state that if the recipient does nothing, no information will be disclosed of any kind to plaintiff’s counsel. This should be clearly stated in the letter as well. In addition, the parties should be required to enter a qualified protective order limiting the use of any information to this litigation.

The opposition argues that having a third party data process handling the information being sought here does not solve the privacy issues, but deflects the problems into the hands of a data provider. This argument is not particularly clear, but does point out that the motion actually does not request that a third party servicer handle the mailing and responses, but proposes that defendant handle the mailing directly, and also report to plaintiff the number of letters sent out, which does not appear to be in keeping with the case law. This should be discussed at the hearing, as a third party servicer should be retained, and the expense probably borne by moving party.

In any case, the opposition does not meet the burden of justifying any objection or failure to fully respond to discovery, given this proposed solution.

Document Demands
CCP sec. 2031.310 provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that
“(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate, incomplete or evasive.
(3) An objection to the response is without merit or too general.”

Under CCP Section 2031.310 (b)(1), “the motion shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168.

The motion and opposition are frankly very confusing, as the motion seems to seek a further code compliant response with a proper statement of compliance, and to challenge the validity of objections, when the further responses to each of the subject interrogatories is the simple response “None.”

These further responses suggest that there are no responsive documents, so that the proper argument here is that the responses are not appropriate code compliant statements of an inability to comply.

Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

With respect to a statement of inability to comply, CCP section 2031.230 requires:
“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been , or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

If defendant here is taking the position, as the responses suggest, that it has located no responsive documents, then further responses which comply with this section should be served. The court cannot, however, compel production of documents which defendant claims do not exist.

However, the opposition seems to argue that the privacy objections are appropriately asserted. If this is the position defendant is taking, then further responses should be required to be served which clearly state the basis for each objection, not a statement that there exist no responsive documents.

The requests seek documents showing the complete disciplinary records of any hospital employee who provided care to plaintiff, job performance evaluations for any employee who provided care to plaintiff, employee exit interviews for all employees leaving employment from October 11, 2013 to October 11, 2014, resident satisfaction surveys, and investigations performed by the hospital as to the allegations set forth in this lawsuit prior to it being filed.


If defendant intends to continue to assert privacy objections, as seems to be argued in the opposition separate statement, such objections do not appear appropriately asserted as to resident satisfaction surveys or investigation of the incident, which were not originally objected to on this ground in any case.

To the extent privacy objections are asserted to personnel files, and work product or attorney client privilege asserted as to investigations, the court needs before it clear responses, and clear arguments by both sides.

With respect to personnel records, plaintiff must make a clearer showing that the personnel records include information directly relevant to this action, that the requests are narrowly tailored, and that the information cannot reasonably be obtained through depositions or from nonconfidential sources.” Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10.

With respect to investigation, defendant must clearly establish the facts supporting any attorney-client or work product protection. See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship,” citing D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723).

The motion accordingly is granted, but only to require further clear and complete responses, and the parties must then meet and confer on each remaining issue before a further motion may be brought.

Case Number: BC5974332    Hearing Date: January 27, 2017    Dept: J

Re: Christopher Bory v. Super Cyckes & Scooters, LLC (BC597432)

MOTION TO COMPEL ARBITRATION

Moving Party: Defendant Super Cycles & Scooters, LLC

Respondent: Plaintiff Christopher Bory

POS: Moving OK; Opposing and Reply served by regular mail contrary to CCP § 1005(c)

The complaint herein, filed on 10/8/15, asserts a cause of action for Products Liability—Manufacturing Defect.

On 10/21/16, this matter was transferred to this department from Department 93 (personal injury hub). On 12/6/16, Defendant Super Cycles & Scooters, LLC’s “Demurrer/Motion to Strike and Motion to Compel Arbitration” was heard. At that time, the court overruled the demurrer, denied the motion to strike and continued the motion to compel arbitration to 1/27/17. The plaintiff was ordered to file any opposition by 1/13/17.

Defendant Super Cycles & Scooters, LLC now moves for an order compelling Plaintiff Christopher Bory (“plaintiff”) to submit his claims to arbitration, pursuant to the Terms of Use & Privacy Policy.
A Status Hearing is also set for 1/27/17.

“In contracts involving interstate commerce, federal law applies to the enforcement of arbitration clauses. (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247). Thus, here, the enforceability of the arbitration clause is governed by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.). (Ibid.).” Winter v. Window Fashions Professionals, Inc. (2008) 166 Cal.App.4th 943, 947. “Under both the FAA and California law, arbitration agreements are valid, irrevocable, and enforceable, except upon such grounds that exist at law or in equity for voiding any contract. (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 98).” Id. “In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration. (Volt [Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468,] at p. 474; see Moses H. Cone [Hospital v. Mercury Constr. Corp. (1983)] 460 U.S. [1,] at p. 24).” Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.

Defendant seeks to compel arbitration of this case in South Carolina, pursuant to the Terms of Use & Privacy Policy (“Agreement”). Said Agreement provides, in pertinent part, as follows:

“At Super Cycles discretion, Super Cycles may insist that any dispute arising out of or related to any Product or Service be arbitrated in South Carolina pursuant to the rules of the American Arbitration Association on a confidential basis; provided, however, that any equitable remedies available via the state and federal courts of South Carolina may remain in effect after Super Cycle elects arbitration pending resolution of the arbitration.” (Alex Decl., Exhibit “A,” p. 13).

Plaintiff contends that the aforesaid clause is unconscionable. “’[G]enerally applicable contract defenses, such as ... unconscionability, may be applied to invalidate arbitration agreements without contravening’ the FAA. (Doctor’s Associates[, Inc. v. Casarotto (1996)] 517 U.S. [681,] at p. 687; accord, Armendariz[, supra,] 24 Cal.4th [at] 114). Unconscionability consists of both procedural and substantive elements.” Pinnacle Museum Tower Assn., supra, 55 Cal.4th at 246.

“The party resisting arbitration bears the burden of proving unconscionability. (Engalla v. Permanente Medical Group, Inc. [(1997)] 15 Cal.4th [951,] at p. 972; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group, supra, 197 Cal.App.4th at p. 1158). Both procedural unconscionability and substantive unconscionability must be shown, but ‘they need not be present in the same degree’ and are evaluated on ‘”a sliding scale.”’ (Armendariz, supra, 24 Cal.4th at p. 114). ‘[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ (Ibid).” Id. at 247.

“The procedural element [of unconscionability] addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. (See Armendariz, at p. 114; Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071 [procedural unconscionability ‘generally takes the form of a contract of adhesion’].).” Id. at 246. “’“Oppression” arises from an inequality of bargaining power which results in no real negotiation and “an absence of meaningful choice.’” [Citation.] “’Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” [Citation.].’” Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1288.

“’”Substantive unconscionability” focuses on the terms of the agreement and whether those terms are ‘so one-sided as to “shock the conscience.”’ [Citations.]’ (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330 [citation].) A contractual provision that is substantively unconscionable ‘may take various forms, but may generally be described as unfairly one-sided.’ (Little, supra, 29 Cal.4th at p. 1071). ‘[T]he paramount consideration in assessing [substantive] conscionability is mutuality.’ (Abramson [v. Juniper Networks, Inc. (2004)] 115 Cal.App.4th [638,] at p. 657).” Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281. “’[A]n agreement may lack “a modicum of bilaterality” and therefore be unconscionable if the agreement requires “arbitration only for the claims of the weaker party but a choice of forums for the claims of the stronger party.”’ (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 713, quoting Armendariz, supra, 24 Cal.4th at p. 119).” Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1253. Similar to California, South Carolina defines unconscionability as “the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them. Fanning v. Fritz’s Pontiac-Cadillac-Buick, Inc. (1996) 322 S.C. 399, 403.” Carolina Care Plan, Inc. v. United HealthCare Services, Inc. (2004) 361 S.C. 544, 554.

Both procedural and substantive unconscionability are present here. With respect to procedural unconscionability, the arbitration clause was set forth in a section described by the header “Venue; Personal Jurisdiction; Service of Process” in an online Agreement that, when printed, consists of 18 pages. Although other sections of the Agreement were depicted on the website in all capital letters to highlight the importance of the subject matter therein, the arbitration clause was set forth in standard lettering. There is no indication that plaintiff could have negotiated the clause. He was not asked to acknowledge the arbitration clause specifically. The rules of the American Arbitration Association are not contained within the Agreement, nor is a link to same provided. With respect to substantive unconscionability, the arbitration clause gives only defendant the opportunity to determine whether or not the parties’ claims should be arbitrated.

As both procedural and substantive unconscionability are present in the subject arbitration clause, defendant’s motion to compel arbitration is denied.

Case Number: BC597905    Hearing Date: January 26, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY
TRANSFERRED AND REASSIGNED TO THE NORTHWEST DISTRICT, VAN NUYS, DEPT A. ALL FUTURE PROCEEDINGS WILL BE BEFORE A JUDGE SELECTED BY THE SUPERVISING JUDGE IN THAT DISTRICT. THE PARTIES WHO HAVE APPEARED IN THE CASE WILL RECEIVE A NOTICE OF CASE REASSIGNMENT TO AN INDEPENDENT CALENDAR (IC) COURT FOR ALL PURPOSES FROM THE NORTHWEST DISTRICT, VAN NUYS COURTHOUSE. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCES, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC599387    Hearing Date: January 20, 2017    Dept: 31

Defendant Seterus, Inc.’s unopposed Motion for Judgment on the Pleadings is GRANTED. Plaintiffs are denied leave to amend for the reasons stated in the court’s September 28, 2016 order, specifically Plaintiffs have failed to demonstrate an intent or ability to amend the complaint. In light of the court’s ruling, the unopposed motions to compel are MOOT.
On September 28, 2016, the court sustained the demurrer of Defendant Federal National Mortgage Association without leave to amend for failure to join Inez Vasquez as a defendant and Plaintiff’s continuous failure to do so.
Defendant requests the court take judicial notice of various recorded documents relating to the property at issue. Courts may take judicial notice of recorded deeds, Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, but not the hearsay or disputable facts asserted in them, Poseidon v. Woodland (2007) 152 Cal.App.4th 1106, 1117 (“For example, the First Substitution recites that Shanley “is the present holder of beneficial interest under said Deed of Trust.” By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.”). The Court may also take judicial notice of the legal effect of such documents. (Id.) Therefore, the request is GRANTED as to Defendant’s request to take judicial notice of various recorded documents related to the property subject to that limitation. Defendant also requests the court take judicial notice of its ruling on Defendant Federal National Mortgage Association’s demurrer. The request is GRANTED pursuant to Evid. Code § 452(d).
Defendant moves for judgment on the pleadings for failure to join Inez Vasquez as an indispensable party. Pursuant to CCP § 389, “[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” The failure to join an indispensable party may be raised by a motion for judgment on the pleadings. (See Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 504.)
Vasquez is named as the title owner on numerous documents which Plaintiffs allege are forgeries in this action. As such, Vasquez is an indispensable party within the meaning of CCP § 389 and Plaintiffs must join Vasquez in this action. Merely naming Vasquez as a defendant is not enough. Vasquez must be served. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) Therefore, the motion is GRANTED. Leave to amend is therefore denied for the reasons stated in the court’s September 28, 2016 order, namely Plaintiffs have not demonstrated any intent or ability to amend the complaint.
Moving parties are ordered to give notice.

Case Number: BC599468    Hearing Date: January 20, 2017    Dept: 91

SUBJECT TO HEARING AND PERSONAL APPEARANCE THEREON:

The parties having appeared (CRC 7.952(a)), and the Court having reviewed and heard the Amended Petition to Approve Compromise of Pending Action of a Minor (Ava Cabrera, Age 17), filed on 1/5/17, the Court finds that the Petition remains defective.

Based on counsel’s declaration, it appears to the court that counsel obtained a global settlement of $30,000 on behalf of both plaintiffs, of which $16,500 is being allocated to the Claimant. Counsel proposes to pay attorney’s fees, costs, and medical expenses totaling $13,499.50 from the Claimant’s allocation. This leaves a net settlement of $3,000.50, however, the Petition and proposed order for deposit represents that $16,500 will be deposited into a blocked account for Claimant.

If Counsel is waiving costs and fees, and if the medical expenses are not going to be paid from Claimant’s allocation, this should be reflected in the petition with an explanation of how the liens identified in paragraph 13 will be satisfied, if not from the minor’s allocation.

Petitioner is also required to fully complete the proposed order approving compromise to reflect the amounts of disbursement and the payees.

Counsel is ordered to prepare and file an amended petition curing these issues by 2/10/17, with a courtesy copy submitted directly in Department 91. The hearing is continued to 2/23/17@1:30 p.m.

Moving party is ordered to give notice.

Case Number: BC599973    Hearing Date: January 23, 2017    Dept: 46

Case Number: BC599973
YVONNE DELGADO VS MONTEBELLO UNIFIED SCHOOL DISTRICT
Filing Date: 11/02/2015
Case Type: Wrongful Termination (General Jurisdiction)
Status: Pending

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.

TENTATIVE RULING

Montebello Unified School District’s Demurrer to the Fourth Cause of Action in the First Amended Complaint is SUSTAINED with 10 days leave to Amend pursuant to CCP §430.10(e). The Fourth Cause of Action does not adequately set forth a cause of action for Retaliation under FEHA. See Discussion.

DISCUSSION

In order to establish a cause of action for retaliation under FEHA, Plaintiff must allege: (1) Plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 874. Plaintiff has not alleged that she engaged in protected activity as defined at the time she was terminated.

Plaintiff’s allegations of complaints and reports are very general, but it appears they all regard the specific failure of Defendant District to grant her request for an accommodation, and the decision to terminate her. (FAC ¶¶ 81, 84).

There are no dates alleged for these complaints and reports, and thus no way to tell whether they were made before or after either her termination or her request for accommodation. Plaintiff’s injury purportedly occurred on 9/26/2014 and she was terminated less than three months later on 12/12/2014. (FAC ¶¶ 21(A), 21(I)).

If Plaintiff’s injury occurred in 2014 it appears her request for accommodation itself cannot be the basis of a retaliation claim. Rope v. Auto-Clor System of Washington, Inc. (2013) 220 C.A.4th 635, 652; Moore v. Regents of the University of California (2016) 248 C.A.4th 216, 245-247 (stating that the 2015 amendment to FEHA which overrules Rope applies prospectively from the date of the amendment).

Since Plaintiff does not allege when the complaints and reports were made and what their subject matter was, there is no way to tell what they were or whether the termination could have been in retaliation for them. Plaintiff’s request for accommodation must have been made prior to termination, but that by itself cannot form the basis for a COA for retaliation.

Defendant’s demurrer therefore is SUSTAINED, with leave to amend so that Plaintiff can allege more specifically what other actions she took, and when, that triggered the termination.

IT IS SO ORDERED:


Frederick C. Shaller, Judge

Case Number: BC600393    Hearing Date: January 20, 2017    Dept: 91

The unopposed Motion for Summary Judgment by Defendant, Ramin Ganjianpour, M.D., filed on 11/4/16 is GRANTED. Defendant has met his burden of establishing that he is entitled to judgment in his favor based on the undisputed material facts proffered. Cal Code Civ Procedure §437c(p)(2).

Proof of the standard of care depends on expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. Proof of causation also requires medical expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

There is no dispute regarding the care and treatment provided to Plaintiff. UF 1-36. It is undisputed that the Defendant’s conduct met the appropriate standard of care based on the declaration of Defendant’s expert, Stephen Mikulak, M.D. UF 37-39. It is undisputed that Defendant’s conduct did not cause Plaintiff’s injury. UF 41-42, 45

Moving party to give notice.

Case Number: BC600549    Hearing Date: January 23, 2017    Dept: 51

Background

According to the allegations, defendant, while holding power of attorney, obtained an unauthorized advance on plaintiff’s home equity or reverse mortgage of $256,550.12, which he distributed to himself on August 12, 2014. On November 10, 2015, plaintiffs filed a complaint for (1) breach of contract, (2) fraud, (3) elder financial abuse, (4) money had and received, (5) accounting, and (6) intentional infliction of emotional distress. On January 21, 2015, defendant filed an answer.

On September 19, 2016, the Court denied without prejudice plaintiff’s motion for leave to amend as procedurally defective. On October 12, 2016, plaintiff filed this unopposed “corrected” motion for leave to file a first amended complaint. The Court considered the moving papers and rules as follows.

Procedural Requirements

A motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC, rule 3.1324(a). The motion must also be accompanied by a supporting declaration that specifies (1) the effect of the amendment, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC, rule 3.1324(b).

Procedural Requirements Analysis

Here, plaintiff submitted a copy of the proposed first amended complaint. The moving papers identify by page, paragraph, and line number the allegations to be added or deleted. MOT 6:12-11:2. The gist of the proposed amendment is to (1) add allegations of conspiracy between defendant Gaudenti and Frances Loguercio (apparently Clemente’s estranged sister, Leanos ¶ Decl. 4.a) to convert plaintiff’s reverse mortgage funds, (2) to replace Doe 1 with Loguercio’s name on the complaint’s caption page (although plaintiff had already filed a Doe amendment), (3) replace Flora Leanos as plaintiff in lieu of Lida Clemente on the complaint’s caption page (although the Court had already approved this substitution), and (4) make minor clarifications and corrections.

Counsel’s declaration states the proposed amendment’s effect, summarized above. Gordon Decl. ¶ 2.

It further states that the proposed amendment is necessary and proper because documents recently produced from three financial institutions pursuant to a subpoena somehow (without explanation) are “documentary proof” of the conspiracy. Gordon Decl. ¶ 3. This does not explain any connection between the documents and the proposed alleged conspiracy. Nonetheless, in a subsequent paragraph addressing a different element, the declaration indicates that Leanos suspects the conspiracy because a financial document revealed a wire transfer from an account that Clemente held jointly with Loguercio, signed by Loguercio and which Clemente did not have notice of or authorize, that was used to pay Gaudenti’s mortgage. Gordon Decl. ¶ 5. Further, Leanos states that she saw Loguercio ask Bank of America to transmit the same amount of the wire transfer to Wells Fargo Bank. Leanos Decl. ¶ 11. These facts are sufficient to address the conspiracy aspect the proposed amendment.

The declarations do not, however, address the other aspects of the proposed amendment. Further, the second and third aspects of the proposed amendment are unnecessary because of already-filed Doe amendment and already-approved substitution of plaintiffs. Thus, the record is sufficiently clear, and the second, third, and fourth aspects of the amendment are unnecessary.

The declaration then states that the new facts were discovered in May 2016, after Clemente died and Leanos reviewed Clemente’s financial documents. Gordon Decl. ¶ 5. Finally, as relevant, it indicates that the request was not made earlier because Leanos has to be substituted, which was clarified at a hearing on August 10, 2016, and the initial request was made shortly thereafter on August 19, 2016. Gordon Decl. ¶¶ 6, 7. These facts are sufficient.

Accordingly, the motion is procedurally proper as to the first aspect of the amendment but defective as to the balance.

Substantive Requirements

As to the merits, California courts employ a liberal approach to amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761. Motions for leave to amend, pursuant to Code of Civil Procedure section 473, will normally be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the court and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted. Atkinson, supra, 109 Cal.App.4th at 759-761 (“It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. Generally absent a showing of prejudice, delay in seeking an amendment alone does not justify the court in denying leave to amend. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565. “Of course, if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.” Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.

Substantive Requirements Analysis

As set forth above, it appears that plaintiff has sufficient facts to allege a conspiracy between Gaudenti and Loguercio to steal money from Clemente to pay Gaudenti’s mortgage. There would be no prejudice because trial is not set, and Gaudenti and Loguercio would have sufficient time to prepare a defense.

The motion is GRANTED as to the proposed conspiracy allegations only and DENIED as to the balance. Plaintiff shall file and serve a standalone copy of the amendment complaint consistent with this order within five days and give notice.

Case Number: BC600783    Hearing Date: January 25, 2017    Dept: 32

JOSUE NICODEMUS, and JULIE L. NICODEMUS,
Plaintiffs,

v.

BANK OF AMERICA, N.A.., et al.,
Defendants.
Case No.: BC600783

Hearing Date: January 25, 2017

[TENTATIVE] ORDER RE:
PLAINTIFFS’ MOTION TO VACATE JUDGMENT


BACKGROUND
The complaint in this action was filed in pro per by Plaintiffs Josue Nicodemus and Julie L. Nicodemus (“Plaintiffs”) on November 12, 2015. Plaintiffs filed a verified First Amended Complaint “FAC” on February 24, 2016. Defendants Bank of America, N.A. (“Bank of America”) and Countrywide Home Loans, Inc. (“Countywide”) demurred to the FAC on March 22, 2016, and Defendants Ocwen Mortgage Servicing, Inc. (“Ocwen”) and Western Progressive Trustee, LLC (“Western”) demurred to the FAC on April 22, 2016.
On May 20, 2016, the Court sustained Defendants Ocwen and Western’s demur with leave to amend. Plaintiff was given 30 days to file a Second Amended Complaint. On June 8, 2016, the Court sustained Defendants Bank of America and Countrywide’s demur with leave to amend. Plaintiff was given ten days to file an amended complaint. On August 3, 2016, all four Defendants moved for an ex parte application to dismiss the case due to Plaintiffs’ failure to file a Second Amended Complaint. The ex parte application was granted, and the Court dismissed the case without prejudice.
Plaintiffs’ filed this motion to vacate the judgment on August 10, 2016, and Defendants filed their oppositions and requests for judicial notice on January 11, 2017.

DISCUSSION
A. Requests for Judicial Notice
Defendants request the Court to take judicial notice of several documents within the case file. The request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

B. Motion to Set Aside Judgment
Plaintiffs move the Court to set aside the judgment of dismissal on the grounds that the judgment was obtained by fraud. Plaintiffs argue that the orders signed by this Court are at variance with the minute order of August 3, 2016, dismissing the case without prejudice. Plaintiff contends that the signed orders dismissed the case with prejudice.
In opposition, Defendants argue that the orders while the caption on the orders does say “with prejudice,” the body of the order was corrected by the Court to reflect the fact the order was to dismiss the case without prejudice.
Plaintiffs’ motion to set aside the judgment is DENIED. Plaintiffs’ case was clearly dismissed without prejudice as reflected by this Court’s minute order and handwritten notions of “without prejudice” within the bodies of the judgments dismissing the case.

Case Number: BC601686    Hearing Date: January 20, 2017    Dept: 46

Case Number: BC601686
STELLA ORTEGA VS FORD MOTOR COMPANY
Filing Date: 11/18/2015
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

01/20/2017
OSC RE Dismissal (AFTER SETTLEMENT)

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING

Plaintiff advised the court by filing a Notice of Unconditional Settlement of the Entire Action that the parties reached a settlement of the action on or before 11/15/2016. CRC 3.1385(b) requires the Plaintiff dismiss the action within 45 days or file a declaration of good cause as to why the matter cannot be dismissed. As there has been no showing of good cause for failure to dismiss the action after the settlement, the action is dismissed without prejudice conditional upon the court retaining jurisdiction to enforce the terms of the settlement pursuant to CCP §664.6 or entering judgment pursuant to stipulation in the event of a failure to perform the terms of a settlement agreement.
IT IS SO ORDERED:
_____________________
Frederick C. Shaller, Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Case Management Conference Order was served on the parties by e-mail pursuant to CRC 3.1109 at the following addresses: judd.gilefsky@leclairryan.com; 'bbeck@slpattorney.com'.

______________________
Frederick C. Shaller, Judge

Case Number: BC601832    Hearing Date: January 20, 2017    Dept: 98

ANZHELA KOVALEVA, et al.,
Plaintiffs,
vs.

SERGI MIZINER, et al.,

Defendants.

CASE NO: BC601832

[TENTATIVE] ORDER RE: EXPEDITED PETITION TO APPROVE COMPROMISE OF MINOR

Dept. 98
1:30 p.m.
January 20, 2017

This action arises out of a November 19, 2013 vehicle vs. pedestrian collision. Plaintiff Polina Kovaleva, a minor, by and through her Guardian ad Litem, Anzhela Kovaleva (“Claimant”) has agreed to settle her claims with Defendant Sergi Miziner for the total amount of $15,000.00. If approved, $3,775.00 of the total settlement will be used for medical expenses, $3,750.00 for attorney’s fees, and $375.00 for other expenses, for a remaining balance of $7,100.00. The remaining balance will be deposited in an insured account, subject to withdrawal only upon the authorization of the court.

Court approval is required for all settlements of a minor’s claim. Cal. Probate Code §§ 3500, 3600, et seq.; Cal. Code of Civ. Proc. § 372. The Court has reviewed the Petition and finds the settlement to be fair and reasonable. The Court further finds the requested attorney’s fee, which amounts to 25% of the settlement, to be fair and reasonable.

In light of the foregoing, the Expedited Petition to Approve Compromise of Minor is GRANTED.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC602315    Hearing Date: February 24, 2017    Dept: 34

SUBJECT: Motion for entry of default judgment

Moving Party: Plaintiff Dongsik Benjamin Park (“plaintiff”)

Resp. Party: None



Plaintiff’s motion for entry of default judgment against Defendant Dong Woo Lee is GRANTED in the amount of $297,086.12. The motion for entry of default judgment against Defendant Connie is DENIED.


BACKGROUND:

On 11/25/15, Plaintiff commenced this action against several defendants for: (1) quiet title; (2) fraud; (3) common count (money had and received); and (4) declaratory relief.

On 2/19/16, Plaintiff filed a proof of service of the summons and complaint on Defendant Connie Hee Lee (“Connie”), by personal service, and Defendant Dong Lee (“Dong”), by substituted service, on 11/29/15.

On 7/21/16, Plaintiff served Defendants with a FAC. On 7/26/16, Plaintiff filed the FAC.

On 10/3/16, default was entered against Defendants Connie and Dong. On 12/12/16, Plaintiff mailed a copy of the “Request for Entry of Default” to Defendants Connie and Dong.






ANALYSIS:

Plaintiff moves for entry of default judgment against Defendants Connie and Dong in the amount of $307,086.12.


Cal. Rules of Court Rule 3.1800 Requirements

Plaintiff has satisfied all of the requirements of CRC Rule 3.1800. Plaintiff used form CIV-100 and included: (1) a brief summary of the case; (2) declarations and other admissible evidence in support of the requested judgment; (3) a memorandum of costs; (4) a declaration of nonmilitary status; (5) a proposed form of judgment; (6) a dismissal of parties against whom judgment is not sought (all defendants, save for Dong Woo Lee and Connie Hee Lee were dismissed); and (7) necessary exhibits. Plaintiff does not request interest, attorneys’ fees, or costs. (Park Decl., ¶ 15).

Award of Damages

Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed. Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267. Where a cause of action is stated in the complaint, plaintiff merely needs to introduce evidence establishing a prima facie case for damages. See Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361 (trial court erroneously applied preponderance of evidence standard). Thus, the defaulting defendant confesses the material allegations of the complaint.

Plaintiff has adequately substantiated his claim for damages in the amount of $297,086.12. Plaintiff’s complaint contains well-pleaded allegations that are supported by exhibits. In support of his claim, Plaintiff submits the Declaration Dongsik Benjamin Park (“Park”) and six exhibits.

This is essentially a fraud case. Plaintiff Park declares that Defendant Dong solicited funds from him for the purpose of making investments in South Korea and promised a return on his investment, plus interest. (Park Decl., ¶ 4). On 9/30/10, Park entered and executed a limited liability operating agreement with Charlie Kim (“Kim”) of Lamigos LLC. (Park Decl., ¶ 6, Exh. 1). (At various times in his declaration, Park refers to Lamigos LLC as Los Amigos. [See, e.g., Park Decl., ¶¶ 6, 8, 9.] The Court assumes this is a typographical error.)

Pursuant to this operating agreement of Lamigos LLC, Park became the owner of 60% of all membership interests in exchange for an investment of $600,000; Kim owned 40% of all membership interests in exchange for an investment of $400,000. (Park Decl., ¶ 6, Exh. 1). On 10/1/10, La Blue Sky LLC entered into a management agreement with Lamigos LLC, whereby Dong agreed to serve and act as Lamigos’s manager. (Park Decl., ¶ 7, Exh. 2). Dong is an alter ego of La Blue Sky LLC. (FAC ¶¶ 9-11).

On 10/6/10, Plaintiff Park deposited $600,000 into a bank account maintained at First Standard Bank (“FSB”) in Lamigos’s name; Kim deposited $400,000 into the same FSB account. (Park Decl., ¶ 8, Exh. 3). On 10/18/10, Dong caused $990,000 to be transferred to him, or otherwise arranged to take possession of the funds. (Park Decl., ¶ 10). Defendants Dong and Connie then used these funds to purchase the Santa Clarita Property. (Park Decl., ¶ 11). After this purchase, Kim surrendered his 40% interest in Lamigos LCC and received his initial investment of $400,000. (Park Decl., ¶ 12). Park proceeded to demand the return of his $600,000 investment. As of today, Dong has returned $292,913.88 to Park, leaving a remainder of $307,086.12. (Park Decl., ¶¶ 13-14).

The Court deducts $10,000 from the request for damages in the amount of $307,086.12, because it is alleged that Dong only caused $990,000 of the $1,000,000 in the FSB to be transferred into his possession.

Based on the foregoing, default judgment is entered against Defendant Dong, and for Plaintiff, in the amount of $297,086.12. The motion for entry of default judgment against Defendant Connie is denied. Plaintiff has failed to establish a prima facie case against Defendant Connie. Based on the evidence provided it was Dong — not Connie — who defrauded Park. The only allegation to the contrary is the conclusory statement that Dong committed this fraud on behalf himself and Connie. (See, e.g., Complaint, ¶ 13; Park Decl., ¶ 5.)

Case Number: BC603176    Hearing Date: February 02, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY TRANSFERRED FOR ALL PURPOSES TO JUDGE Y. PALAZUELOS IN DEPT. 28 OF THE CENTRAL DISTRICT, LOS ANGELES. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC603424    Hearing Date: January 24, 2017    Dept: 51

Plaintiff’s motions to compel discovery from each defendant are GRANTED. Defendants’ counsel need to reorient their attitude toward discovery. Sanctions are warranted. Because there was no objection, the Court will overlook plaintiff’s combining multiple discovery tools into one motion, though the Court will reduce the sanction award in part for that reason.

I. Dr. Annamalai must respond further to all of the discovery at issue, as discussed below.

A. Form Interrogatory 12.1

This is a standard form interrogatory, and parties cannot avoid a response to this standard interrogatory for the reasons defendant provided.
The term “incident” is not too vague to allow for a meaningful answer in the medical malpractice context. There almost certainly is a core set of persons whom defendants are aware witnessed plaintiff’s treatment, or whom defendants believe have percipient knowledge of it. Defendants can provide an explanation as to how they have construed the term in responding if necessary.

The compiling of names, addresses, and phone numbers is simply not compiling “lists, abstracts, and summaries” that are equally available to both parties. The medical center, at least, is an employer and may have access to this information for employees that plaintiff does not. This interrogatory is routinely answered by employer-defendants in California cases.

B. Form Interrogatory 15.1

The motion was warranted when filed, as the objections to this standard interrogatory are entirely misguided. There is a representation in the opposition that defendants responded while the motion was pending, so the Court will assume no further order is necessary.

C. Special Interrogatory 4 and 5

It is obviously not too vague to request Dr. Annamalai identify the members of the surgical team for the September 2, 2014, operation, nor to require him to identify those person’s responsibilities.

D. Special Interrogatories 12, 13, 14, and 20

Plaintiff has asked a straightforward question in asking Dr. Annamalai for the facts that support his conclusion that the lesion was cancerous, and for witnesses (if any) who know of such facts and to identify documents (if any) that support the conclusion. The request in special interrogatory 20 appears equally straightforward.

E. Request for Production 8

It is obviously not too burdensome to seek documents showing continuing education in the past five years. If the doctor has taken so much continuing education that since 2011 that there is an oppressive number of such documents, defendants counsel should explain this at the hearing. Because the potential relevance (if any) is impeachment, what appears to matter is proof of taking such courses and likely not the content of them.

II. Cedars must respond further as discussed below.

A. Form Interrogatories 12.1 and 15.1

See discussion above.

B. Form Interrogatory 16.1, 16.2, 16.3, 16.6
These are standard form interrogatories that Cedars must answer based on its contentions in the litigation.

C. Special Interrogatories Numbers 1, 2, 3, and 4

Cedars can answer these questions. There are almost certainly certain individuals who were assigned to care for plaintiff, and it is highly likely there is some way that those individuals are assigned.

D. Special Interrogatories 5, 6, 7, 8, and 9

Cedars can answer yes or no to number 5 and explain why and what information supports that conclusion in the subsequent answers.

E. Special Interrogatories 10, 11, 12, 13, and 14

Cedars can answer yes or no to number 10 and explain why and what information supports that conclusion in the subsequent answers.

F. Special Interrogatory 15

There likely are some procedures to be followed where there is a possibly cancerous body; if the defendants have no such procedures, they should answer the interrogatory by stating as much.

G. Special Interrogatories 16 and 17

If there was no person other than the defendant doctor who approved the surgery or obtained approval, Cedars can state that; otherwise, it can provide that person’s name.

H. Special Interrogatories 21, 25, 26, 27, 29, 30, 31

There likely are some discharge procedures and surgical procedures; if not, Cedars can state as much.
The Court imposes sanctions on defendants’ counsel of $3035, payable to plaintiff within 30 days.

Case Number: BC603453    Hearing Date: January 23, 2017    Dept: 91

Two (2) unopposed Motions by Defendant, J Brothers Transportation, Inc., for an Order Compelling Plaintiffs, Nicholas Peter Daginis’s and Timothy Judge Sr.’s Responses to Form Interrogatories, Set One, and Demand for Production of Documents, Set One, filed on 12/22/16 are GRANTED.

Plaintiffs are ordered to provide verified responses without objection to Form Interrogatories, Set One, and Demand for Production of Documents, Set One, within 10 days. Cal. Code Civ. Proc. §§ 2030.290(b), 2031.300(b).

The court imposes total sanctions of $478.00 against both Plaintiffs, collectively, for both motions for the failure to submit to an authorized method of discovery. Cal. Code Civ. Proc. §§2023.010(a)(4); 2023.010(b)(1).

Moving party is ordered to give notice.

Case Number: BC603949    Hearing Date: January 25, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY TRANSFERRED FOR ALL PURPOSES TO JUDGE R. ROGERS IN DEPT. A-15 OF THE NORTH DISTRICT, LANCASTER. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC604349    Hearing Date: January 23, 2017    Dept: 93

HEARING ON MOTION TO COMPEL PLAINTIFF TO APPEAR FOR DEPOSITION AND IME IS CONTINUED TO FEBRUARY 9, 2017, AT 1:30 P.M. TO MEET OTHER MOTION TO COMPEL IME AND TO BE HEARD TOGETHER.

Case Number: BC604427    Hearing Date: January 30, 2017    Dept: 46

Case Number: BC604427
FERNE CASSEL VS JEANETTE ZHOU ET AL
Filing Date: 12/21/2015
Case Type: Fraud (no contract) (General Jurisdiction)

1/30/2017

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULNG
Plaintiff obtained a fee waiver at the outset of the case. Plaintiff recovered more than $10,000 in the settlement. The court must collect the fees that were not paid due to the waiver pursuant to Government Code §68637. Plaintiff is ordered to pay those fees ($435) within 30 days. Should Plaintiff fail to pay the fees within 30 days or otherwise comply with G.C. §68637, then judgment shall be entered as provided in G.C. §68638 against Plaintiff for the fees waived in addition to the administrative/other fees for collection, levying, and otherwise as permitted by law. This order is effective on 1/30/2017.
IT IS SO ORDERED:

Frederick C. Shaller, Judge

Case Number: BC604649    Hearing Date: January 20, 2017    Dept: 92

ADLEAN ASHLEY,
Plaintiff(s),

vs.

99 CENTS ONLY STORES, ET AL.,
Defendant(s).

Case No.: BC604649

[TENTATIVE] ORDER CONTINUING HEARING ON MOTION TO COMPEL

Defendant filed these motions to compel on 8/02/16. Plaintiff filed oppositions on 8/19/16. Defendant filed reply papers on 8/25/16. On 9/01/16, the Court issued an order continuing the hearing on the motions to require the parties to participate in an informal discovery conference. The IDC was scheduled for 10/24/16. On 10/24/16, Defendant appeared, but Plaintiff did not.

The Court will treat today’s 1/20/17 hearing date as an Informal Discovery Conference. Both parties are expected to appear, through counsel, and participate in the conference. If the parties are unable to resolve their outstanding issues during the course of the conference, the hearing on the motions to compel will be continued to a future date.

The Court notes that, per its Sixth Amended General Order, ¶21, it has the power to impose sanctions due to a party’s failure to comply with the terms of the Order. The Court wishes to hear from Plaintiff’s attorney, at the time of the 1/20/17 hearing, concerning why sanctions should not be imposed due to failure to appear at the 10/24/16 IDC.

Case Number: BC606044    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


JOSE ORTEGA, et al.,

Plaintiffs,


vs.


JOSE AGUAYO, et al.,

Defendants.
Case No.: BC606044


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION FOR ORDER DISMISSING PLAINTIFF’S ACTION AGAINST DEFENDANT FOR FAILURE TO OBEY COURT ORDERS


Defendant Jose Aguayo’s Motion for Order Dismissing Plaintiff’s Action Against Defendant for Failure to Obey Court Orders is GRANTED. The complaint is DISMISSED WITH PREJUDICE.
Defendant’s request for monetary sanctions is DENIED.

The Court considered the moving papers. No opposition was filed.
BACKGROUND
On January 6, 2016, Jose Ortega filed a complaint against Jose Aguayo for motor vehicle negligence based on an incident on August 6, 2014, where plaintiff was stopped at a sign in his auto in El Monte when his auto was rear-ended by defendant.
On October 12, 2016, the court granted plaintiff’s counsel’s motion to be relieved as counsel.
On November 15, 2016, the court granted defendant’s motions to compel discovery responses.
DISCUSSION
Defendant requests that the Court impose terminating sanctions by dismissing the complaint and impose monetary sanctions in the amount of $433.50.
If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP §2023.030, §2025.450(d) (depositions); §2030.290 (interrogatories); §2031.300(c) (requests for production of documents). Under CCP section 2023.101, misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.
Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246. Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. Id. at 1244-1246 (discussing cases); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed when party repeatedly failed to comply with single discovery order); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed when party violated single discovery order and several discovery statutes).
In this context, willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 787. A “conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” Id. at 787-88. The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal. App. 3d 250, 252-253.
A court is not required to impose sanctions in a graduated fashion, but may apply "the ultimate sanction" against a party who has persisted in refusing to comply with discovery obligations. Deyo, supra, at 793. “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal. App. 3d 520, 524.
On November 16, 2016, the court ordered plaintiff to serve responses without objections to form interrogatories and request for production of documents within ten days and to pay sanctions within 30 days. Defendant contends that plaintiff has not complied with the court order.
The court finds that plaintiff willfully failed to obey the court order. He did not oppose the initial motions to compel or appear at the hearing on the motions to compel. He has not filed an opposition to this motion.
Accordingly, the motion is GRANTED.
Whether plaintiff complied with the court’s order to pay monetary sanctions to defendant within 30 days is of no significance. This court has not considered that as a factor. The failure of a party to pay court-ordered sanctions is not an appropriate basis for a terminating sanction. Newland v. Superior Court (1995) 40 Cal. App. 4th 608. That monetary sanction order can be reduced to and simply collected as judgment, as allowed by law.
As to defendant’s request for additional monetary sanctions, the request is DENIED as terminating sanctions are the ultimate sanction.

Defendant is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2016

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC606319    Hearing Date: January 26, 2017    Dept: 34

SUBJECT: Motion for leave to amend

Moving Party: Plaintiff Auto Cellular Systems, Inc. dba Connect Wireless

Resp. Party: None



BACKGROUND:

Plaintiff commenced this action on 1/7/16 against defendant for breach of contract and violation of Business and Professions Code.

ANALYSIS:

Plaintiff requests leave to file an amended complaint which adds another defendant.

Under California Rules of Court rule 3.1324(a):


(a) A motion to amend a pleading before trial must: [¶] (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; [¶] (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Subdivision (b) of rule 3.1324 requires the motion be accompanied by a separate declaration, specifying: (1) the amendment's effect, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier.

Plaintiff fails to provide a copy of a proposed amended complaint which is serially numbered to differentiate it from previous pleadings. (See Pl. Exhs. C, D.) Plaintiff fails to provide a declaration that sufficiently complies with rule 3.1324(b). (See Worthge Decl.)

It appears that plaintiff is merely attempting to substitute named defendants for Does. (See Pl. Exh. D.) The Court notes that Doe amendments are often made without filing a noticed motion. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2016) ¶ 6:614.) From the motion, it is unclear if a Doe amendment is proper. Plaintiff appears to be adding a new party to whom funds were assigned. (See Worthge Decl., ¶ 14.) The Court notes that the original complaint does not appear to include allegations as to an assignment.

Further, the Court is concerned that trial is scheduled in less than three weeks, and the Final Status Conference is but a week away. The Court also notes that on January 10, 2017, plaintiff opposed – and the Court denied – defendants motion for leave to file an amended Cross-complaint. One of the main grounds upon which plaintiff opposed the motion was that it would delay the trial.

The Court will hear from counsel on these issues.

Case Number: BC606351    Hearing Date: January 25, 2017    Dept: 98

ARVIND KUMAR, et al.,
Plaintiffs,
vs.

KIMBERLY ANN TELLES-HUIZAR, et al.,

Defendants.


And Related Cross-Action.

CASE NO: BC606351

[TENTATIVE] ORDER RE: DEFENDANT HERTZ CORPORATION’S MOTION FOR SUMMARY JUDGMENT

Dept. 98
1:30 p.m.
January 25, 2017

On January 7, 2016, Plaintiffs Arvind Kumar, Ashly Billington, and Kiran Chiluveru (“Plaintiffs”) filed this action against Defendants Kimberly Ann Telles-Huizar (“Telles-Huizar”), Dong Soo Choi (“Choi”), and The Hertz Corporation (“Hertz”) for alleged damages arising out of a September 10, 2014 vehicle collision. Plaintiffs allege a cause of action for Registered Owner Liability pursuant to California Vehicle Code sections 17150 and 17151 against Hertz as the owner of the vehicle operated by Choi. Hertz now moves for summary judgment.

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant moving for summary judgment may present evidence that would require a trier of fact not to find any underlying material fact more likely than not, or, alternatively, he may simply point out that the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow a trier of fact to find any underlying material fact more likely than not. Id., at 857-58.

It is undisputed Choi rented a vehicle owned by Hertz and was the operator of said vehicle at the time of the incident. Undisputed Material Facts (“UMF”), No. 2.

Hertz contends that it is entitled to summary judgment as a matter of law on the grounds that Plaintiffs’ only basis for Hertz’ liability, its ownership of the rental vehicle operated by Choi, is barred by the Graves Amendment. Hertz further asserts that Plaintiffs have no evidence of any negligent or criminal conduct on its part.

Pursuant to the Graves Amendment, an owner of a motor vehicle that rents or leases the vehicle shall not be liable under the law of any state, by reason of being the owner of the vehicle, for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if: 1) the owner is engaged in the trade or business of renting or leasing motor vehicles; and 2) there is no negligence or criminal wrongdoing on the part of the owner. 49 U.S.C. § 30106(a). The Graves Amendment “shields owners of leased vehicles ‘engaged in the business or trade of renting or leasing motor vehicles’ from vicarious liability for the alleged negligence of their lessee’s drivers.” Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 642.

The Graves Amendment further provides that it does not supersede the law of any state: 1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or 2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under state law. 42 U.S.C. § 30106(b). This savings clause refers to “state laws which impose insurance-like requirements on owners or operators of motor vehicles, but permit them to carry, in lieu of liability insurance per se, its financial equivalent, such as a bond or self-insurance.” Garcia v. Vanguard Car Rental USA, Inc. (11th Cir. 2008) 540 F.3d 1242, 1247.

Plaintiffs do not dispute that Hertz is in the business of renting motor vehicles. Plaintiffs argue that their claim is not barred by the Graves Amendment by operation of the savings clause. However, Plaintiffs’ only basis for liability alleged against Hertz is registered owner liability under Vehicle Code sections 17150 and 17151. These sections impose liability for death or personal injury upon those who own motor vehicles simply by virtue of their ownership. Liability under these sections against Hertz is expressly barred by the Graves Amendment. Further, section 17150 of the Vehicle Code is not part of this state’s Financial Responsibility Laws. Goodson v. Perfect Fit Enterprises, Inc. (1998) 67 Cal.App.4th 508, 514.

The Court finds that Plaintiffs’ claim against Hertz as the owner of the subject vehicle is barred by the Graves Amendment. As Plaintiffs’ only claim for liability against Hertz is based upon Hertz’ ownership of the vehicle operated by Choi and Plaintiffs have no evidence that Hertz engaged in any negligence or criminal wrongdoing, Hertz is entitled to summary judgment as a matter of law.

In light of the foregoing, Hertz’ Motion for Summary Judgment is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC606610    Hearing Date: January 23, 2017    Dept: J

Re: Suzette Pana, et al. v. Group I El Monte Properties, Ltd., et al. (BC606610)

MOTION TO COMPEL PLAINTIFF RHEA MALLORY TO PROVIDE FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE

Moving Parties: Defendants Group I El Monte Properties, Ltd. and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.)

Respondent: Plaintiff Rhea Mallory

POS: Moving OK; Opposing untimely filed (1/10/17, due 1/9/17) and served by regular mail contrary to CCP § 1005(c)

This is a habitability action and personal injury action pertaining to an apartment located at 632 N. Huntington Blvd. #7 in Pomona (“subject property”). The habitability component pertains to plaintiffs’ alleged exposure to mold, black mold, roaches, water damage and other pestilence and vermin at the subject property. The personal injury component pertains to a shooting that allegedly took place on 1/9/14. The complaint was filed on 1/8/16. On 7/5/16, this case was transferred to our department from Department 93 (personal injury hub). The FAC was filed on 9/21/16. The SAC, filed on 12/9/16, asserts causes of action for:

1. Breach of Warranty of Habitability
2. Nuisance
3. Negligent Hiring/Retention/Supervision

A Status Conference is set for 2/16/17.

Defendants Group I El Monte Properties, Ltd. and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.) move the court for an order compelling Plaintiff Rhea Mallory (“Mallory”) to provide further responses to their Form Interrogatories, Set No. One (i.e., Nos. 2.3, 2.5, 6.4, 6.5, 6.7, 7.1 and 12.1), without objection and within ten days of the date of this hearing.

SEPARATE STATEMENT:

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:…(2) The text of each response, answer, or objection, and any further responses or answers…” California Rules of Court Rule 3.1345(c)(2).

Defendants Group I El Monte Properties, Ltd.’s and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.)’s (“defendants”) separate statement reflects technical non-compliance with the above provision; specifically, it does not include Plaintiff Rhea Mallory (“Mallory”)’s second supplemental response to Nos. 2.3 and 2.5. With that said, Mallory’s first and second supplemental responses to No. 2.5 are identical; her second supplemental response to No. 2.3 varies from her first supplemental response only by the added language “[d]iscovery and investigation are continuing.”

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” CCP § 2030.300(a). “A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2030.300(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” CCP § 2030.300(b).

On 6/1/16, defendants served their Form Interrogatories, Set No. One, on Mallory. (Marvisi Decl., ¶ 3, Exhibit “B”).

On 7/6/16, Mallory’s counsel requested a two-week extension to respond to the discovery, which was granted. (Id., ¶ 4, Exhibit “C”). On 7/19/16, Mallory’s counsel requested an additional one-week extension to respond to the discovery. (Id., ¶ 5, Exhibit “D”). Defendants’ counsel claims that responses were not received until 8/30/16, via facsimile and that, as such, Mallory waived her objections; Mallory, however, claims that she timely served her responses on 7/27/16. (Marvisi Decl., ¶¶ 6, 7 and 9, and Exhibits “E” and “G;” see also Garcia Decl., ¶ 4, Exhibit “B”) . On/about 9/12/16, defendants’ counsel sent a meet and confer correspondence, requesting further responses without objections. (Marvisi Decl., ¶ 11, Exhibit “H”). On 10/31/16, Mallory provided her first supplemental responses. (Id., ¶ 13, Exhibit “J”). On 11/1/16, defendants’ counsel sent another meet and confer correspondence. (Id., ¶ 15, Exhibit “K”). On 11/2/16, Mallory provided her second supplemental responses. (Id., ¶ 17, Exhibit “M”). On 11/16/16, defendants’ counsel sent another meet and confer correspondence. (Id., ¶ 18, Exhibit “N”). On 12/5/16, Mallory provided her third supplemental responses. (Id., ¶ 22, Exhibit “R”).

The form interrogatories in issue read as follows:

Form Interrogatory No. 2.3:
At the time of the INCIDENT, did you have a driver’s license? If so, state:
(a) the state of other issuing entity;
(b) the license number and type;
(c) the date of issuance;
(d) all restrictions

Form Interrogatory No. 2.5:
State:
(a) your present residence ADDRESS;
(b) your residence ADDRESSES for the last five years;
(c) the dates you lived at each ADDRESS;

Form Interrogatory No. 6.4:
Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure, § 2034) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT?
If so, for each HEALTH CARE PROVIDER state:
(a) the name, ADDRESS, and telephone number;
(b) the type of consultation, examination, or treatment provided;
(c) the dates you received consultation, examination, or treatment;
(d) the charges to date.

Form Interrogatory No. 6.5:
Have you taken any medication, prescribe or not, as a result of injuries that you attribute to the INCIDENT? If so, for each medication state:
(a) the name;
(b) the PERSON who prescribed or furnished it;
(c) the date prescribed or furnished;
(d) the dates you began and stopped taking it;
(e) the cost to date.

Form Interrogatory No. 6.7:
Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the INCIDENT? If so, for each injury state:
(a) the name and ADDRESS of each HEALTH CARE PROVIDER;
(b) the complaints for which the treatment was advised;
(c) the nature, duration, and estimated cost of the treatment.

Form Interrogatory No. 7.1:
Do you attribute any loss of or damage to a vehicle or other property to the INCIDENT? If so, for each item of property:
(a) describe the property;
(b) describe the nature and location of the damage to the property;
(c) state the amount of damage you are claiming for each item of property
and how the amount was calculated; and
(d) if the property was sold, state the name, ADDRESS, and telephone
number of the seller, the date of sale, and the sale price.

Form Interrogatory No. 12.1:
State the name, ADDRESS, and telephone number of each individual:
(a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;
(b) who made any statement at the scene of the INCIDENT;
(c) who heard any statements made about the INCIDENT by any individual
at the scene; and
(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has
knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure Section 2034).

Mallory’s response to No. 2.3 is evasive. She does not, moreover, address any of the sub-parts. A further, substantive response is warranted. A further response is appropriate as to No. 2.5 as well, with respect to when in 2014 she moved into her current address.

A further, substantive response to No. 6.4 is warranted. Mallory claims she is “in the process of obtaining [her] medical records and bills obtained relating to this Incident;” however, the subject discovery was propounded on 6/1/16, nearly eight months prior to the hearing date of this motion. Regardless, Mallory must identify and provide the contact information of any and all of her healthcare providers to defendants to enable them to subpoena her medical and medical billing records. Mallory must respond to each of the sub-parts.

A further, substantive response to No. 6.5 is also warranted. Again, the fact that Mallory may still be in the process of obtaining her medical records does not excuse her from providing a response. She may not evade responding to this request by referencing medical records that have not been produced and have not been identified. Mallory must respond to each of the sub-parts.

A further, substantive response to No. 6.7 is warranted, for the reasons set forth in connection with Nos. 6.4 and 6.5. Mallory must respond to each of the sub-parts.

A further, substantive response to No. 7.1 is warranted. Mallory must respond to each of the sub-parts.

A further, substantive response to No. 12.1 is warranted. Mallory’s response of “defendants’ employees” is evasive and deficient.

The further verified responses are ordered to be served within 10 days of the hearing.

Case Number: BC606610    Hearing Date: January 24, 2017    Dept: J

Re: Suzette Pena, et al. v. Group I El Monte Properties, Ltd., et al. (BC606610)

MOTION TO COMPEL PLAINTIFF SUZETTE PENA TO PROVIDE FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE

Moving Parties: Defendants Group I El Monte Properties, Ltd. and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.)

Respondent: Plaintiff Suzette Pena

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

This is a habitability action and personal injury action pertaining to an apartment located at 632 N. Huntington Blvd. #7 in Pomona (“subject property”). The habitability component pertains to plaintiffs’ alleged exposure to mold, black mold, roaches, water damage and other pestilence and vermin at the subject property. The personal injury component pertains to a shooting that allegedly took place on 1/9/14. The complaint was filed on 1/8/16. On 7/5/16, this case was transferred to our department from Department 93 (personal injury hub). The FAC was filed on 9/21/16. The SAC, filed on 12/9/16, asserts causes of action for:

1. Breach of Warranty of Habitability
2. Nuisance
3. Negligent Hiring/Retention/Supervision

A Status Conference is set for 2/16/17.

Defendants Group I El Monte Properties, Ltd. and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.) move for an order compelling Plaintiff Suzette Pena to provide further responses to their Form Interrogatories, Set No. One (i.e., Nos. 6.4-6.7, 7.1, 10.2 and 12.1), without objection and within ten days of the date of this hearing.

On 6/1/16, Defendants Group I El Monte Properties, Ltd. and Nijjar Realty, Inc. dba Pama Management Company (erroneously sued separately as Nijjar Realty, Inc. dba Pama Management Company and Nijjar Realty, Inc.) (“Pena”) served their Form Interrogatories, Set No. One, on Plaintiff Suzette Pena (“Pena”). (Marvisi Decl., ¶ 2, Exhibit “A”). On 7/6/16, Pena’s counsel requested a two-week extension to respond to the discovery, which was granted. (Id., ¶ 4, Exhibit “C”). On 7/19/16, Pena’s counsel requested an additional one-week extension to respond to the discovery. (Id., ¶ 5, Exhibit “D”). Defendants’ counsel claims that responses were not received until 8/30/16, via facsimile and that, as such, Pena waived her objections; Pena, however, claims that she timely served her responses on 7/27/16. (Marvisi Decl., ¶¶ 6-8, and Exhibits “E” and “F;” see also Garcia Decl., ¶ 4, Exhibit “B”). On/about 9/12/16, defendants’ counsel sent a meet and confer correspondence, requesting further responses without objections. (Marvisi Decl., ¶ 11, Exhibit “H”). On 10/31/16, Pena provided her first supplemental responses. (Id., ¶ 12, Exhibit “I”). On 11/1/16, defendants’ counsel sent another meet and confer correspondence. (Id., ¶ 15, Exhibit “K”). On 11/2/16, Pena provided her second supplemental responses. (Id., ¶ 16, Exhibit “L”). On 11/16/16, defendants’ counsel sent another meet and confer correspondence. (Id., ¶ 18, Exhibit “N”). On 12/5/16, Pena provided her third supplemental responses. (Id., ¶ 21, Exhibit Q”). The form interrogatories in issue read as follows:

Form Interrogatory No. 6.4:
Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure, § 2034) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT?
If so, for each HEALTH CARE PROVIDER state:
(a) the name, ADDRESS, and telephone number;
(b) the type of consultation, examination, or treatment provided;
(c) the dates you received consultation, examination, or treatment;
(d) the charges to date.

Form Interrogatory No. 6.5:
Have you taken any medication, prescribe or not, as a result of injuries that you attribute to the INCIDENT? If so, for each medication state:
(a) the name;
(b) the PERSON who prescribed or furnished it;
(c) the date prescribed or furnished;
(d) the dates you began and stopped taking it;
(e) the cost to date.


Form Interrogatory No. 6.6:
Are there any other medical services not previously listed (for example, ambulance, nursing, prosthetics)?

If so, for each service, state:
(a) the nature;
(b) the date;
(c) the cost;
(d) the name, ADDRESS, and telephone number of each provider.

Form Interrogatory No. 6.7:
Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the INCIDENT? If so, for each injury state:
(a) the name and ADDRESS of each HEALTH CARE PROVIDER;
(b) the complaints for which the treatment was advised;
(c) the nature, duration, and estimated cost of the treatment.

Form Interrogatory No. 7.1:
Do you attribute any loss of or damage to a vehicle or other property to the INCIDENT? If so, for each item of property:
(a) describe the property;
(b) describe the nature and location of the damage to the property;
(c) state the amount of damage you are claiming for each item of property
and how the amount was calculated; and
(d) if the property was sold, state the name, ADDRESS, and telephone
number of the seller, the date of sale, and the sale price.

Form Interrogatory No. 10.2:
List all physical, mental, and emotional disabilities you had immediately before the INCIDENT. (You may omit mental or emotional disabilities unless you attribute any mental or emotional injury to the INCIDENT).

Form Interrogatory No. 12.1:
State the name, ADDRESS, and telephone number of each individual:
(a) who witnessed the INCIDENT or the events occurring immediately
before or after the INCIDENT;
(b) who made any statement at the scene of the INCIDENT;
(c) who heard any statements made about the INCIDENT by any individual
at the scene; and
(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has
knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure Section 2034).

Further, substantive responses to Nos. 6.4 and 6.6 are warranted. Pena appears to solely provide information pertaining to her treatment following the 1/4/14 shooting and not as to the injuries she purportedly sustained as a result of habitability issues. Pena must identify and provide the contact information of any and all of her healthcare providers for all of her injuries identified in response to No. 6.2 to enable defendants to subpoena her medical and medical billing records.

A further, substantive response to No. 6.5 is also warranted. The fact that Pena may still be in the process of obtaining her medical records does not excuse her from providing a response. She may not evade responding to this request by referencing medical records that have not been produced and have not been identified. Pena must respond to each of the sub-parts.

A further, substantive response to No. 6.7 is warranted, for the reasons set forth in connection with Nos. 6.4-6.6. Pena must respond to each of the sub-parts.

A further, substantive response to No. 7.1 is warranted. Pena must respond to each of the sub-parts. A further, substantive response to No. 10.2 is warranted.

A further, substantive response to No. 12.1 is warranted. Pena’s response of “defendants’ employees” is evasive and deficient.

The further verified responses are ordered to be served within 10 days of the hearing.

Case Number: BC607128    Hearing Date: January 23, 2017    Dept: 32

SAM ADAL,
Plaintiff,
v.

ANTOUN AMISH KALIOUNDJI, et al.,

Defendants.
Case No.: BC607128

Hearing Date: January 23, 2016

[TENTATIVE] ORDER RE:
(1) DEFENDANT’S MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF

(2) PLAINTIFF’S MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES

(3) SANCTIONS


BACKGROUND
On January 15, 2015, Plaintiff brought this action against Defendants. The complaint asserts ten causes of action: (1) winding up of partnership by receiver; (2) declaratory relief; (3) conversion; (4) breach of fiduciary duty; (5) imposition of constructive trust; (6) injunctive relief; (7) accounting; (8) breach of contract; (9) partition; and (1) fraud. Defendant answered on March 14, 2016 and filed a cross complaint on December 8, 2016. Cross- Defendant (Plaintiffs) answered on December 22, 2016.



DISCUSSION
If a party to whom interrogatories and document demands are directed fails to respond at all, the propounding party’s remedy is to seek a court order compelling answers. (CCP §§2030.290, 2031.300.) All that needs to be shown is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. The moving party is not required to show a reasonable and good faith attempt to resolve the matter informally before filing the motion. The failure to timely respond also waives all objections.
Sanctions shall be imposed against a party who unsuccessfully opposes a motion to compel unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances would make the imposition of sanctions unjust. CCP § 2030.290(c).
A. Production of Documents
On March 11, 2016, Defendants served Form Interrogatories and a Request for Production of Documents on each Plaintiff. The responses were due on April 11, 2016. Defendant had not received a response as of November 17, 2016. However, in the December 5, 2016 Opposition to Defendants’ Ex Parte Application for an Order Granting Motion to Compel, Plaintiffs declares that they submitted responses to all discovery requests. Plaintiffs attached the first page of each response as Exhibit A and B in the December 5 Opposition. Thus, the motions are now moot.
B. Form Interrogatories
Plaintiffs served responses to the form interrogatories on December 5, 2016. The motions to compel responses to the form interrogatories are moot.


Sanctions
Defendants’ counsel seeks sanctions in the amount of $800 per motion. Defendants’ counsel declares that her hourly rate is $185 an hour and she spent 1 hour per motion. Defendants’ counsel also anticipates 3 hours replying to opposition and attending hearings per motion. Counsel requests $60 in filing fees per motion.
Plaintiff has not opposed the motion and has responded to the discovery requests. Thus, the three hours per motion in anticipation of a reply is excessive. This Court finds that sanctioning Plaintiff for the filing fees and one hour preparing each motion is reasonable. Counsel can reasonably spend about 2-hours attending the hearing for both motions.
Plaintiff and plaintiff’s attorney shall to pay $860 in monetary sanctions to Defendant within 10 days of this order.

Case Number: BC607402    Hearing Date: January 20, 2017    Dept: 97

35

SILVIA CELEDON,
Plaintiff,
v.

FRED GARCIA, et al.,
Defendants.
Case No.: BC607402
Hearing Date: January 20, 2017
[TENTATIVE] ORDER RE:
MOTION TO BE RELIEVED AS COUNSEL WITH RESPECT TO PLAINTIFFS SILVIA CELEDON AND RAFAEL CELEDON


California Rules of Court (“CRC”) Rule 3.1362 requires motions to be relieved as counsel pursuant to CCP § 284(2) be made on Judicial Council Forms MC-051 (Notice of Motion and Motion to be Relieved as Counsel), MC-052 (Declaration in Support of Attorney’s Motion to Be Relieved as Counsel), and MC-053 (Order Granting Attorney’s Motion to Be Relieved as Counsel). (CRC, Rule 3.1362.) Furthermore, the requisite forms must be served on the client and all other parties who have appeared in the case. (CRC, Rule 3.1362(d).) If the client is served by mail, there must be a declaration showing confirmation of the service address within the past 30 days or evidence that efforts have been made to confirm the service address.. (Id.)
The Court finds that the procedural requirements of CRC, Rule 3.1362 have not been met. Counsel has failed to lodge a proposed order on Form MC-053 prior to the hearing and Counsel has failed to provide evidence that Form MC-053 was served on Plaintiffs.
Counsel’s Motion to be Relieved as Counsel with Respect to Plaintiffs Silvia Celedon and Rafael Celedon is denied without prejudice. The Court would be inclined to grant the motion if Counsel corrects the aforementioned deficiencies in his next filing.
Counsel is ordered to give notice of this order.

Case Number: BC607688    Hearing Date: January 24, 2017    Dept: 73

1/24/17
Dept. 73
Rafael Ongkeko, Judge presiding

GILES-KINNEY vs. COUNTY (BC607688)

Counsel for plaintiff/opposing party: Jay Rothman; Lowell Finson (Rothman, etc.)
Counsel for defendant/moving party County (COLA): Jack Schuler; Irina Rosenberg (Schuler, etc.)


Plaintiff’s motion to compel document production at deposition


TENTATIVE RULING

Plaintiff Veronica Giles-Kinney’s motion to compel document production at deposition is denied. No requests for production of documents were included in the deposition notice to COLA’s witness, Ms. Weekes. Accordingly, there is no document request to which the court may compel responses or production.

No sanctions are requested and, therefore, no sanctions are awarded.

CCP § 2025.480(a) provides that “[i]f a deponent fails . . . to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Emphasis added.)

Plaintiff’s deposition notice to Ms. Weekes was served on November 14, 2016, but does not include any document requests. Even if the court were to conclude that the documents requested in this motion may otherwise be discoverable, the court is without authority to order production of documents absent the service of a valid request for production of documents. Without propounding actual document requests, the court is asked to rule in a vacuum. Plaintiff’s informal request for documents is inherently vague and ambiguous and Plaintiff’s motion seeking a nebulous order compelling the production of documents where no discovery request is pending is patently improper.

The motion to compel is DENIED.

Unless waived, notice of ruling by defendant.

Case Number: BC608988    Hearing Date: January 20, 2017    Dept: 98

RASHELL KHAN,
Plaintiff,
vs.

ARIA CAMARILLO ZUBER, et al.,

Defendants.

CASE NO: BC608988

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S ATTENDANCE AT DEPOSITION

Dept. 98
1:30 p.m.
January 20, 2017

On February 2, 2016, Plaintiff Rashell Khan (“Plaintiff”) filed this action against Defendant Aria Camarillo Zuber (“Defendant”) for alleged damages arising out of a February 15, 2014 vehicle collision. On June 22, 2016, Defendant served Plaintiff with a Notice of Taking Deposition, setting Plaintiff’s deposition for October 19, 2016. Declaration of Arpie A. Aslanian, ¶ 2. The deposition was continued to November 16, 2016. Id., ¶ 3. On November 14, 2016, counsel for Plaintiff informed Defendant’s counsel that they would not be appearing on November 16, 2016. Id., ¶ 4. Defendant now moves to compel Plaintiff’s attendance at deposition and for monetary sanctions.

If, after service of a deposition notice, a party fails to appear for examination or to proceed with it, the noticing party may move for an order compelling the deponent’s attendance and testimony. Cal. Code of Civ. Proc. § 2025.450(a). As Plaintiff has failed to appear for examination, Defendant’s Motion to Compel is GRANTED. Plaintiff is ordered appear for her deposition on a mutually agreeable date within twenty (20) days upon notice of this Order.

The Court must impose monetary sanctions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The Court finds sanctions to be appropriate here. Defendant seeks monetary sanctions in the amount of $1,245.00, contending that three hours were spent preparing this Motion and three hours will be spent preparing a reply and appearing at the hearing, at a rate of $175.00 per hour. Defendant also incurred a $60.00 filing fee.

The Court finds one hour to prepare this unopposed Motion and one hour to appear at the hearing, along with the filing fee, to be sufficient to compensate Defendant. The Court therefore awards Defendant a total of $410.00 in monetary sanctions against Plaintiff. Sanctions are to be paid within twenty (20) days upon notice of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC609760    Hearing Date: January 20, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

HANNA KAY;

Plaintiff,

vs.

EXPERT ONE INSURANCE AGENCY, INC., et al.;

Defendants. Case No.: BC 609760

Hearing Date: January 20, 2017


[TENTATIVE] RULING RE:

DEFENDANT EXPERT ONE INSURANCE AGENCY, INC. AND SPECIALLY APPEARING DEFENDANT BEHNAZ GHIASI’S MOTION TO QUASH SERVICE AND MOTION TO STRIKE DOE AMENDMENT

Defendant Expert One Insurance Agency, Inc. and Specially Appearing Defendant Behnaz Ghiasi’s Motion to Quash Service is GRANTED.

Defendant Expert One Insurance Agency, Inc. and Specially Appearing Defendant Behnaz Ghiasi’s Motion to Strike is GRANTED without leave to amend.
Plaintiff Hanna Kay should address at the hearing whether the remaining DOE Defendants should be dismissed from the case.

FACTUAL BACKGROUND

Plaintiff Hanna Kay (“Kay”) alleges that on October 24, 2014, she met with defendants Expert One Insurance Agency, Inc. (“Expert”). (Second Amended Complaint (“SAC) ¶ 7.) Specifically, the SAC alleges that “Plaintiff Hanna met with Defendant Expert One Insurance Agency, Inc. and their employees. . . .” (Ibid.) Kay requested the exact amount of coverage as she had on her prior policy, and “Expert One Insurance Agency, Inc. intentionally told Plaintiff that she would get the exact same coverage as she had on her prior policy for a lower price.” (SAC ¶ 8.) No employee names are set forth in paragraphs 7 or 8 or elsewhere in the SAC.

Prior to October 24, 2014, Kay had Uninsured Motorist Bodily Injury Coverage of $50,000 per person and up to $100,000 per occurrence, and her premium was $2,411.60. (SAC ¶ 9, Ex. A.) Expert offered her the same coverage for $1,998.81. (SAC ¶ 11.)

Kay alleges that the new Alliance United Insurance Services (“Alliance”) policy acquired through Expert did not include uninsured motorist coverage, despite never signing a rejection of uninsured motorist coverage. (SAC ¶ 12.)

A few days later, Alliance “and their employees” spoke to Kay, and told her that she had the same coverage as she did under the prior policy. (SAC ¶ 13.) The insurance policy is attached as Exhibit B to the SAC. (SAC ¶ 13, Ex. B.)

On November 3, 2014, Kay was involved in a traffic accident and sustained major injuries. (SAC ¶ 15.) Kay submitted a claim to Alliance, but Alliance refused to provide the coverage “for which they had implied and expressed they had sold or provided to Plaintiff,” presumably the underinsured motorist coverage. (SAC ¶ 17.) Kay claims that she relied on Expert and Alliance’s representations that she had all the same coverage as before to her detriment but she no longer had coverage to compensate her for her injuries. (Complaint ¶¶ 12–18.)


PROCEDURAL HISTORY

Kay filed her Complaint on February 9, 2016, alleging two causes of action:
1. Fraud by Negligent Misrepresentation
2. Negligence

Kay filed an untimely First Amended Complaint on April 12, 2016. On April 18, 2016, this court sustained a demurrer to the Complaint with leave to amend.
Kay filed her Second Amended Complaint (“SAC”) on May 6, 2016, alleging two causes of action:
1. Fraud by Negligent Misrepresentation
2. Negligence

On July 15, 2016, Alliance filed a Demurrer to the SAC, including a proper meet and confer declaration. Expert filed its Demurrer and Motion to Strike the SAC on July 19, 2016, along with a proper meet and confer declaration.

On September 29, 2016, this court granted Expert’s motions to compel Kay’s responses to On October 24, 2016, this court sustained demurrers without leave to amend by Alliance and Expert. Judgment was entered on November 14, 2016.

PRE-FILING HISTORY

Behnaz Ghiasi (“Ghiasi”) is the owner of Expert One. (Ghiasi Decl. ¶ 1.) On November 3, 2016, his office was served with a summons, complaint, and a Doe amendment in this action. (Id. ¶ 2, Ex. A.)

The Complaint served on Ghiasi was Kay’s original Complaint rather than the operative SAC filed on May 6, 2016. (Ghiasi Decl. Ex. A.)

Expert and Ghiasi filed their Motion to Quash Service and Motion to Strike Doe Amendment on December 6, 2016. The motion contains a proof of service showing service on Hanna Kay at the address listed on her last filing, her October 25, 2016 Amendment to Complaint. No Opposition has been filed.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

Expert and Ghiasi request that this court take judicial notice of the following documents:
• The Notice of Ruling filed with the Court on October 26, 2016
• The small claims complaint filed by Kay on November 29, 2016
The court GRANTS this request for judicial notice.

II. MOTION TO QUASH SERVICE

Code of Civil Procedure section 418.10, subd. (a)(1) states: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes . . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.)

Here, Ghiasi argues that Kay failed to properly serve him because the served Complaint was the original complaint, not the operate SAC. (Motion to Quash at pp. 5–6.)

“‘“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]” [Citation.]’ [Citation.]” (Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1144.)
Because the Complaint served on Ghiasi is not a proper pleading, Ghiasi was not properly served. The Motion to Quash Service is GRANTED.

III. MOTION TO STRIKE DOE AMENDMENT

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Expert and Ghiasi argues that because this court sustained Expert’s demurrer to the SAC without leave to amend, the Doe amendment is improper. (Motion to Strike at pp. 4–6.) Expert and Ghiasi argue that Kay would need be granted leave to amend her SAC to add a Doe defendant pursuant to Code of Civil Procedure section 473.

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” (Code Civ. Proc., § 474.)
As the court in Johnson v. Goodyear Tire & Rubber Co. (1963) 216 Cal.App.2d 133 similarly held: “Where the plaintiff is ignorant of the true names of certain defendants, he may designate them by a fictitious name in the complaint and later request leave to amend to insert their true names when ascertained.” (Id. at p. 136, emphasis in original.)

Here, the demurrers were sustained without leave to amend. However, in the Los Angeles Superior Court, a party need only file the LACIV 105 form to effectuate a Doe amendment. Kay filed this form on October 25, 2016. Therefore, Kay did not need leave to file a Doe amendment. This procedure is noted in the Rutter Group’s California Practice Guide: Civil Procedure Before Trial in Chapter 6 at section 6:613, where is states: “In some courts, plaintiff's attorney must prepare an application and order to amend the complaint. In other courts (e.g., Los Angeles), printed forms are available for amendments of this type; all the attorney has to do is fill in the name of the defendant who is being served as one of the ‘Does.’”

However, Ghiasi argues that the Doe amendment is improper because this court sustained Expert’s demurrer to the SAC without leave to amend, and Kay has not added any new allegations against Ghiasi, Expert’s President, which would be a valid basis for the SAC to state any causes of action against Ghiasi. (Motion to Strike at pp. 5–6.) Ghiasi argues that the Doe amendment is essentially a “sham pleading.” As discussed below, this court agrees.

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations.] A noted commentator has explained, ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ [Citation.]” (Deveny v. Entropin, Inc. (“Deveny”) (2006) 139 Cal.App.4th 408, 425–426.) The sham pleading doctrine “is intended to enable courts ‘to prevent an abuse of process.’ [Citation.]” (Deveny, supra, 139 Cal.App.4th at p. 426.)

Here, Ghiasi has provided a declaration stating that he is the owner of Expert. (Ghiasi Decl. ¶ 1.) This court previously sustained the demurrer as to Expert without leave to amend because Kay admitted in a deposition of which this court took judicial notice that Kay did not talk to anybody at Expert until after the accident at issue, and therefore her fraud cause of action failed as to Expert. (October 26, 2016 Ruling at p. 5.) The court also sustained the demurrer to the negligence cause of action because Kay failed to allege that she suffered any damages because of the lack of underinsured motorist coverage. (Id. at p. 6.)
The Doe amendment, while properly filed, does not add any allegations, nor could Kay add any allegations without leave of court. Ghiasi has submitted evidence that he is the President of Expert, and the court takes as true that he is being added as a Doe defendant in this action under the same allegations and legal theories as Expert. Kay may not avoid the legal consequences of this court’s order sustained the demurrer as to Expert without leave to amend by simply filing a Doe amendment naming Expert’s President without any additional allegation or explanation. The sham pleading doctrine was developed specifically to prevent such an abuse of process.
Kay has failed to oppose this motion to argue why the Doe amendment is not a sham pleading.

The Motion to Strike is GRANTED without leave to amend.

Defendant to give notice.

DATED: January 20, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

Case Number: BC609789    Hearing Date: January 20, 2017    Dept: 98

APRAHAM POSTADJIAN,
Plaintiff,
vs.

ALBER KARAMANOUKIAN, et al.,

Defendants.

CASE NO: BC609789

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; PLAINTIFF’S MOTIONS TO COMPEL FURTHER RESPONSES

Dept. 98
1:30 p.m.
January 20, 2017

On February 11, 2016, Plaintiff Apraham Postadjian (“Plaintiff”) filed this action for alleged damages arising out of an April 26, 2015 fall. On November 14, 2016, Plaintiff filed Motions to Compel further responses. On November 29, 2016, the parties participated in an Informal Discovery Conference. A Joint Statement was filed on December 13, 2016, which indicates that further responses have been served to Plaintiff’s subject discovery requests. Plaintiff’s Motions to Compel further responses are therefore taken off calendar.

On November 21, 2016, Defendants Alber Karamanoukian and Montebello Adult Day Health Care, Inc. (“Montebello”) (collectively, “Moving Defendants”) filed a Motion for leave to file a Cross-Complaint against Plaintiff for: 1) Restitution of Compensation pursuant to California Business and Professions Code section 7031; and 2) declaratory relief. Moving Defendants assert that during the course of discovery they have discovered that Montebello may be entitled to recover compensation it paid to Plaintiff because Plaintiff was unlicensed to do the services he was hired to perform.

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. Cal. Code of Civ. Proc. § 428.50(a). Any other cross-complaint may be filed at any time before the court has set a date for trial. Id., § 428.50(b). A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. Id., § 428.50(c).

Plaintiff does not oppose the filing of a Cross-Complaint, but requests that leave be granted subject to the following terms: 1) the Cross-Complaint shall be limited in scope to restitution under Business and Professions Code section 7031 for work performed at the subject premises where the incident occurred; 2) Plaintiff shall not be deposed again without his consent; 3) Defendants shall produce all documentation of amounts paid supporting the Cross-Complaint within twenty (20) days; and 4) the filing of the Cross-Complaint shall not be cause for a trial continuance, absent agreement from Plaintiff.

Plaintiff provides no argument or authority in support of these terms and the Court finds them to be unwarranted. Therefore, Moving Defendants’ Motion is GRANTED without limitations. Moving Defendants are ordered to file their Proposed Cross-Complaint within five (5) days of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC610034    Hearing Date: January 24, 2017    Dept: 98

STEPHANIE STACIE SALVATIERRA, et al.,
Plaintiffs,
vs.

LUIS BLANCAS, et al.,

Defendants.

CASE NO: BC610034

[TENTATIVE] ORDER RE: DEFENDANT ANDRES CARLOS LOPEZ’ MOTION TO COMPEL DEPOSITION OF LUIS BLANCAS

Dept. 98
1:30 p.m.
January 24, 2017

On February 10, 2016, Plaintiffs Stephanie Stacie Salvatierra; Sharon Sheryl Salvatierra; and Jerson Ivan Condori filed this action against Defendants Luis Blancas (“Blancas”) and Andres Carlos Lopez (“Lopez”) for alleged damages arising out of a March 16, 2014 vehicle collision. On September 19, 2016, Lopez served Blancas with a Notice of Taking Deposition, setting the deposition for November 2, 2016. Declaration of Jonathan P. Cyr, ¶ 3. Counsel for Lopez has been advised by his staff that prior to the date noticed, his office received a call purportedly from a secretary for Blancas’ attorney, stating that Blancas had been deported. Id., ¶ 4. No documentation to that effect has been provided. Id., ¶ 4. On November 2, 2016, counsel for Lopez appeared for the deposition and Blancas failed to appear. Id., ¶ 5. Lopez now moves to compel Blancas’ appearance at deposition and for monetary sanctions.

If, after service of a deposition notice, a party fails to appear for examination or to proceed with it, the noticing party may move for an order compelling the deponent’s attendance and testimony. Cal. Code of Civ. Proc. § 2025.450(a).

As Blancas has failed to appear at his noticed deposition, Lopez’ unopposed Motion to Compel is GRANTED. Blancas is ordered appear for his deposition on a mutually agreeable date within thirty (30) days upon notice of this Order.

The Court must impose monetary sanctions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. In light of Blancas’ apparently involuntary absence from his deposition, the Court finds sanctions to be inappropriate here.

The Court finds one hour to prepare this unopposed Motion and one hour to appear at the hearing, along with the filing and court reporter fees, to be sufficient to compensate Lopez. The Court therefore awards Lopez a total of $589.50 in monetary sanctions against Blancas. Sanctions are to be paid within twenty (20) days upon notice of this Order.


Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 24th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC612696    Hearing Date: January 23, 2017    Dept: 92

AGRIPINA MORA, ET AL.,
Plaintiff(s),

vs.

FREDY A. HERNANDEZ MONTEROSSA, ET AL.,
Defendant(s).

CASE NO: BC612696

[TENTATIVE] ORDER GRANTING DEFENDANT’S UNOPPOSED MOTION TO COMPEL

Defendant propounded form interrogatories and special interrogatories on Plaintiff, Agripina Mora on 5/20/16. To date, despite an attempt to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

As an initial note, Defendant originally filed four motions to compel – the other three motions concerned (a) form and special interrogatories directed at Plaintiff, Yolanda Valdez, (b) RPDs directed at Agripina Mora, and (c) RPDs directed at Yolanda Valdez. On 1/18/17, Defendant canceled the reservations for these three motions; at this time, only the motion concerning interrogatories directed at Mora remains on calendar.

Defendant’s motion is granted. Plaintiff is ordered to serve verified responses to form interrogatories and special interrogatories, without objections, within ten days. CCP §2030.290(a),(b).

Sanctions are mandatory. §2030.290(c). Defendant seeks sanctions in the amount of $678 – two hours to prepare the motion, one hour to prepare a reply, and one hour to appear at the hearing, all at $150/hour, plus filing and parking fees. The Court awards one hour for preparation of the motion because it is a form motion to compel. No opposition was filed and therefore no time for preparation of a reply is awarded. The Court finds reasonable and awards the requested one hour to appear. The Court therefore awards a total of two hours of attorney time at the requested rate of $150/hour, or $300 in attorneys’ fees. The Court also awards the filing fee and parking fee of $60 and $18, respectively, or $78 in costs. Sanctions are sought and imposed against Plaintiff and her attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through its attorney of record, in the total amount of $378, within twenty days.

Case Number: BC612778    Hearing Date: January 23, 2017    Dept: 97

YOO JIN JEONG, ) Case No.: BC612778
)
Plaintiffs, ) ORDER TRANSFERRING COMPLICATED
vs. ) PERSONAL INJURY (PI) CASE TO AN
) INDEPENDENT CALENDAR (IC) COURT
IONE MEDICAL GROUP INC., )
Defendants. )
__________________________________________ )

DEPARTMENT 97 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION:

1. __ IS NOT A PERSONAL INJURY CASE AS DEFINED IN THE COURT’S MOST RECENT GENERAL ORDER RE: GENERAL JURISDICTION PERSONAL INJURY CASES, OR

2. X IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.
AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:

1. __ TRANSFERRED AND REASSIGNED TO THE ENTER DISTRICT. DISTRICT, DEPT ENTER DEPT. NUMBER.. ALL FUTURE PROCEEDINGS WILL BE BEFORE A JUDGE SELECTED BY THE SUPERVISING JUDGE IN THAT DISTRICT. THE PARTIES WHO HAVE APPEARED IN THE CASE WILL RECEIVE A NOTICE OF CASE REASSIGNMENT TO AN INDEPENDENT CALENDAR (IC) COURT FOR ALL PURPOSES FROM THE COURTHOUSE. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCES, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

2. X TRANSFERRED FOR ALL PURPOSES TO JUDGE JOHN P. DOYLE IN DEPT. 58 OF THE CENTRAL DISTRICT.

ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC612893    Hearing Date: January 20, 2017    Dept: 39

Solar Optimum v. Hilbert Haghnazar, BC612893

Defendant’s Motion for Award of Attorneys’ Fees: the motion is OFF-CALENDAR due to insufficient notice.

Defendant failed to file a proof of service in connection with the instant motion. Therefore, the court cannot determine whether the motion was properly served, especially in light of Plaintiff’s failure to respond. (C.C.P. § 1005.) The time by which Defendant may file a proof of service has passed. (C.R.C. 3.1300(c) [“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”].)

Therefore, the motion is ordered OFF-CALENDAR due to insufficient service.

Case Number: BC613027    Hearing Date: January 20, 2017    Dept: 31

Plaintiff’s unopposed motions are GRANTED.
Requests for Admission
Plaintiff moves the court for an order deeming Requests for Admissions, Set No. 1 served on Defendant Eftekhari admitted, or alternatively, compelling objection-free responses.
Plaintiff cites CCP § 2033.280 and requests the court deem the Requests for Admissions, Set No. 1 admitted. However, Plaintiff admits that it extended the time to respond to September 16, 2016, (Rosenbaum Decl. ¶ 12), which is the date of service of the responses. (Id. Ex. F.) Therefore, the responses, containing only objections, were timely. As such, CCP § 2033.280, which only applies “[i]f a party to whom requests for admission are directed fails to serve a timely response,” is inapplicable. Where responses are provided in the form of objections, the court may only deem the responses admitted after the responding party fails to comply with a court order compelling further responses. (CCP § 2033.290(e).) Accordingly, the motion to deem the requests admitted is DENIED.
Pursuant to CCP § 2033.290(a)(2), a party receiving a response may move to compel further responses if “[a]n objection to a particular request is without merit or too general.” The motion is unopposed. A respondent has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.) Therefore, the motion is GRANTED as to the request to compel further responses. Eftekhari is ordered to provide verified responses without objection within 20 days of the date of this order.
Plaintiff requests sanctions against Defendant Eftekhari only. The court declines to impose sanctions against Eftekhari as the imposition of sanctions would be unjust. It is clear to this court that Eftekhari’s former counsel served boilerplate objections to meet the response deadline prior to his withdrawal. It would be unjust to sanction Eftekhari individually for his former counsel’s conduct.
Form Interrogatories
Plaintiff also moves to compel further responses to its Form Interrogatories, Set One. As with the requests for admissions, Eftekhari served responses containing solely objections. (Rosenbaum Decl. Ex. D.) Eftekhari failed to oppose the motion and has thus failed to justify the objections. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.) The motion is GRANTED. Eftekhari is ordered to serve verified responses without objection within 20 days of the date of this order. For the same reason, the court declines to impose sanctions.
Demand for Production of Documents
Plaintiff moves to compel further responses to Demand for Production of Documents, Set No. 1. Eftekhari served only objections. (Rosenbaum Decl. Ex. E.) As an additional requirement only as to requests for production, the motion must set forth specific facts showing good cause justifying the discovery sought. (CCP § 2031.310(b)(1).) Plaintiff’s motion and separate statement adequately make this showing as the request seek documents supporting Defendant’s responses to various Form Interrogatories. Once good cause has been shown, a respondent has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255; Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 97-98.) Eftekhari failed to oppose the motion and therefore did not meet this burden. The motion is GRANTED. Eftekhari is ordered to serve verified responses without objections within 20 days from the date of this order. For the same reasons, the court declines to impose sanctions.
Plaintiff is ordered to give notice.

Case Number: BC613878    Hearing Date: January 20, 2017    Dept: 98

FATEN ARBO, et al.,
Plaintiffs,
vs.

SABRINA SOMSRI THONGTRAKAL,
et al.,

Defendants.

CASE NO: BC613878

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Dept. 98
1:30 p.m.
January 20, 2017

On March 16, 2016, Plaintiffs Faten Arbo and George Arbo (“Plaintiffs”) filed this action against Defendant Sabrina Somsri Thongtrakal (“Defendant”) for alleged damages arising out of a March 17, 2014 vehicle collision. Plaintiffs’ operative First Amended Complaint (“FAC”) includes a prayer for punitive damages and attorney’s fees. Defendant now moves to strike Plaintiffs’ prayer for punitive damages and related allegations, as well as Plaintiffs’ prayer for attorney’s fees.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Cal. Code of Civ. Proc. § 435(b)(1). The court may, upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., §§ 436(a)-(b).

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294(a). “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. § 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. § 3294(c)(2). “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [citation].” Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.

Plaintiffs allege that Defendant had consumed alcoholic beverages and/or other controlled substances which impaired her ability to navigate and control her vehicle. FAC, ¶ 16. Plaintiffs further allege that Defendant failed to use reasonable care, ran through a red light, and operated her vehicle at an unsafe speed greater than is reasonable or prudent for the road conditions and circumstances, knowing that she posed a risk to the safety of others and that others would probably suffer injury as a result. FAC, ¶¶ 27-28.

The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated in certain circumstances. Taylor v. Superior Court (1979) 24 Cal.3d 890, 892. In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the court reversed the trial court’s order striking the plaintiffs’ allegations in support of punitive damages. The plaintiffs had alleged that the defendant operated a motor vehicle while intoxicated and failed to stop at a stop sign, zigzagged in and out of traffic, and drove at a speed in excess of 65 miles per hour in a designated 35 mile per hour zone. Id., at 86. The court concluded that the trial court “could only exercise its discretion in one way in ruling on the motion to strike-by denying the motion.” Id., at 91.

Here, Plaintiffs have alleged that Defendant was driving at an unreasonable speed and ran through a red light while intoxicated. The Court finds that these allegations are sufficient to support Plaintiffs’ claim for punitive damages. Defendant’s Motion as to this claim is therefore DENIED.

Attorney’s fees are recoverable when authorized by contract or statute. Cal. Code of Civ. Proc. § 1033.5(a). Plaintiffs have not alleged any contractual or statutory basis which would entitle them to attorney’s fees and they do not address attorney’s fees in their Opposition. Defendant’s Motion to Strike Plaintiffs’ prayer for attorney’s fees is therefore GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC614271    Hearing Date: January 23, 2017    Dept: 56

Case Name: Sunrise Caregiver Foundation v. Infinity Medical Alliance
Case No.: BC614271
Matter: Demurrer to SAC


Tentative Ruling: Demurrer is sustained.


Plaintiff Sunrise Caregiver Foundation Inc. filed this action against Defendants Infinity Medical Alliance Inc. and other defendants. The operative Second Amended Complaint asserts causes of action for (1) violation of B&P Code §17200, (2) negligence, (3) negligence per se, and (4) injunctive relief. Defendants Infinity Medical Alliance, Columbia RE, Fantappie Family Trust, Giancarlo Fantappie, and L.A. Express Medical Transportation demur to the 2nd 3rd and 4th causes of action.

Defendants demur on the ground that the SAC fails to allege facts supporting a legal duty of care owed to Plaintiff. The Court previously sustained a demurrer to the original Complaint on this ground, and Defendants have shown that the SAC does not cure these defects in the 2nd and 3rd COAs and the 4th COA has no basis for injunctive relief. No opposition was filed by Plaintiff.

The demurrer is sustained for the 2nd 3rd and 4th COAs. Leave to amend is denied, as Plaintiff has not opposed this demurrer and it does not appear that Plaintiff can assert a viable negligence-based claim. Because the 1st COA remains, Defendants shall answer within 15 days.

Case Number: BC615285    Hearing Date: January 23, 2017    Dept: 58

Hearing Date: Monday, January 23, 2017
Calendar No: 10
Case Name: Accountable Healthcare Staffing, Inc. v. Leader, et al.
Case No.: BC615285
Motion: Motion for Stay
Moving Party: Plaintiff Accountable Healthcare Staffing, Inc.
Opposing Party: Defendants Jon M. Leader and Leader Counsel, Inc. (Non-Opposition)

Tentative Ruling: Motion to stay is granted.
________________________________________

On 3/29/16, Plaintiff Accountable Healthcare Staffing, Inc. filed this action against Defendants Jon M. Leader and Leader Counsel, Inc. arising out of an attorney opinion letter prepared by Defendants in connection with Plaintiff’s purchase of assets of HRN Services, Inc. in which Defendants failed to disclose a pending medical malpractice litigation against HRN (Estrada-Grobl v. Valley Health Systems, Clark County District Court Case No. A-12-672867-C (“Underlying Action”)). Plaintiff asserts causes of action for professional negligence and negligent misrepresentation. Trial is set for 7/31/17; FSC for 7/20/17; status conference and OSC re: dismissal of unnamed and unserved defendants for 1/23/17.

Motion to Stay –
Plaintiff moves to stay this action until the Underlying Action is resolved. A stay is appropriate in this legal malpractice case (see Adams v. Paul (1995) 11 Cal.4th 583, 593), and Defendants do not oppose the stay subject to Plaintiff’s willingness to also stay a concurrent action filed in Palm Beach County Circuit Court by Plaintiff against HRN and Arthur Flaster and Karen Flaster (alleged to be the majority shareholders of HRN). Plaintiff is agreeable to such a stay and advises that the parties are negotiating a tolling agreement so that this action may be dismissed without prejudice. Therefore, the motion to stay is granted, contingent upon the entry into the subject tolling agreement and the stay of the subject Florida case.

Case Number: BC615297    Hearing Date: January 23, 2017    Dept: 56

Case Name: Bame v. Ford Motor Company
Case No.: BC615297
Matter: Plaintiff’s Motion to Compel Further Responses to RPDs


Tentative Ruling: Motion and case are stayed.


Plaintiff Christina Bame filed this lemon law / auto warranty action against Defendant Ford Motor Company. Plaintiff moves to compel Defendant to provide further responses to Requests for Production of Documents.

Defendant has requested a continuance or stay of the motion in light of proceedings in Court of Appeal Case No. B277725. There is a coordination proceeding in Case No. JCCP4856 that involves similar warranty cases. Defendant has moved to add on this case and others, and the trial court denied Defendant’s motion on 8/29/2016. But on 12/2/2016 the Court of Appeal in B277725 issued an order to show cause why the trial court’s order should not be vacated by writ of mandate. The Court of Appeal’s docket indicates that a hearing is scheduled in that court for 3/28/17. Since one of the main purposes of the coordination proceeding is to impose uniform discovery standards, this court will stay the present motion, Defendant’s motion for protective order noticed for 4/19/17, and all other proceedings in this case, pending a ruling by the Court of Appeal.

It is therefore ordered that all proceedings in this case are stayed, and a status conference will be held on 5/2/2017 at 8.30 am.

Case Number: BC616523    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


NADIA SWEISS,

Plaintiff,


vs.


NORTHRIDGE HOSPITAL MEDICAL CENTER, et al.,

Defendants.
Case No.: BC616523


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


DEMURRER TO COMPLAINT


Defendant Hertz Equipment Rental Corp.’s Demurrer is CONTINUED to February 21, 2017 at 1:30 p.m. to allow counsel to meet and confer as required by CCP §430.41. Defense counsel is ordered to file a declaration by February 16, 2017 as to counsel’s efforts or to take the demurrer off calendar if the issue is resolved.
Defendant Hertz Equipment Rental is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017


_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC617284    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


MARIA SQUIERI,

Plaintiff,


vs.


ACCESS SERVICES, et al.,

Defendants.
Case No.: BC617284


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION FOR CONSOLIDATION OF CASES


Defendants Access Services, Global Paratransit, and David Ernesto Segura Martinez’s Motion for Consolidation of Cases is GRANTED.
Case BC617284 is designated the lead case. All future filings are to be filed in the lead case and must include the caption and case number of the lead case followed by the case numbers of all other consolidated cases (BC621398). All hearing dates in cases other than the lead case are vacated.
The Court considered the moving papers. No opposition was filed.
BACKGROUND
On April 15, 2016, Maria Squieri filed a complaint against Access Services, Global Paratransit, Inc., County of LA, and David Ernesto Segura Martinez for negligence. Plaintiff alleges that on April 30, 2015, she was properly restrained and lawfully operating a Ford Freestar minivan and was exiting Route 60 on its freeway off ramp when Martinez caused a multiple vehicle, chain reaction collision, resulting in injuries to plaintiff.
On December 12, 2016, the Court related the herein case with BC621398.
DISCUSSION
Defendants Access Services, Global Paratransit, and David Ernesto Segura Martinez requests that the related cases BC617284 and BC621398 (Ziqin Hu v. Access Services, et al.) be consolidated.
CCP §1048 grants discretion to the trial courts to consolidate actions involving common questions of law or fact. Subsection (a) gives the court discretion to order consolidation of cases when common questions of law or fact are pending. Subsection (b) allows the court to order separate trials in furtherance of convenience or to avoid prejudice.
Under California Rules of Court Rule 3.350(a)(1), a notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated. (2) The motion to consolidate: (A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case; (B) Must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated; and (C) Must have a proof of service filed as part of the motion.
Defendants have complied with Cal. Rules of Court Rule 3.350 except to the extent that notice of motion was not filed in BC621398. Counsel in BC621398, though, have been served.
Defendants argue that both cases arise out of the same accident and consolidation would promote judicial economy.
There is no opposition.
Based on the foregoing, the motion is GRANTED.
Defendants are ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC617937    Hearing Date: January 20, 2017    Dept: 91

Motion by Defendants, Kevin Gevorkyan and Hovsep Nargizyan, to Strike Portions of Plaintiffs’ First Amended Complaint, filed on 11/21/16, is GRANTED. The court strikes paragraph 38, 9:15-19, and the prayer for punitive damages at Page 9:26 of the First Amended Complaint.

To support the claim for punitive damages, Plaintiffs must allege facts and circumstances showing malice, fraud or oppression as those terms are defined by statute. Grieves v. Superior Court, 157 Cal. App. 3d 159, 166 (1984). The alleged conduct must either be intended to cause injury or be “despicable” and “carried on by the defendant with a willful and conscious disregard of the rights or safety of others” in order to constitute malicious conduct. “Oppression” requires conduct that can be regarded as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”Civ Code §3294(c).

Punitive damages are sought in the 3rd cause of action for “gross negligence.” Plaintiff alleges that Defendant was convicted of Veh Code § 23104(a), which imposes penalties for reckless driving causing bodily injury to a person.

Even if a jury found that Defendant’s conduct resulting in conviction was “gross negligence,” such conduct is insufficient to support punitive damages claim. Neither negligent, reckless or grossly negligent conduct can support an award of punitive damages. Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.

Plaintiff must allege conduct that is “despicable,” which is more than a “willful and conscious disregard” of the Plaintiff’s interests. Such conduct is defined as “base,” “vile,” or “contemptible. College Hospital Inc. v. Superior Court, (1994) 8 Cal. 4th 704, 725. “Despicable conduct” occurs “where the ‘tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.'” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051. The alleged facts sound in negligence only and do not rise to the level of “extreme indifference” to constitute despicable conduct.

Moving party is ordered to give notice.

Case Number: BC618364    Hearing Date: January 24, 2017    Dept: 97

31

KAREN WOO, et al.,
Plaintiffs,
v.

SANTA ANITA SHOPPINGTOWN, L.P., et al.,
Defendants.
Case No.: BC618364

Hearing Date: January 24, 2017

[TENTATIVE] ORDER RE:

MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSE TO REQUEST FOR PRODUCTION (SET ONE)

BACKGROUND
Plaintiff Karen Woo (“Plaintiff”) filed the present motion to compel further on October 21, 2016. On November 30, 2016, the parties participated in an Informal Discovery Conference (“IDC”) with Judge Randolph Hammock. The parties did not resolve their discovery disputes at the IDC, thus, Defendant Santa Anita Shoppingtown, L.P. (“Defendant”) filed its opposition to Plaintiff’s motion on December 2, 2016. Plaintiff has not filed a reply in response to Defendant’s opposition.
DISCUSSION
Plaintiff moves for an order compelling Defendant’s further response to Plaintiff’s Request for Production of Documents (Set One), Request Nos. 10, 18, and 19.
With respect to Request No. 10 which seeks construction records, Defendant has responded that “[a]fter a diligent search and reasonable inquiry, responding party does not have any responsive documents.” Plaintiff contends that Defendant must possess construction records because there are photographs showing the location of the accident under construction after the subject incident. However, Plaintiff’s instincts regarding the possible existence of records is not a cognizable reason to compel Defendant’s further response. The Court finds that Defendant’s response is code compliant and merits no further response.
With respect to Request Nos. 18 and 19 which seeks incident reports prepared by Defendant concerning the accident, Defendant objected to the request based on attorney-client privilege and work product privileges. In its moving papers, Plaintiff argues that the reports are not protected by attorney-client privilege because the reports were prepared by Defendant’s employees who were acting as independent witnesses. In opposition, Defendant submits the declaration of Raymond Osegura (“Osegura”) in support of its argument that the reports are totally protected by attorney-client privilege.
The fact that investigation reports made for the use of attorneys in possible litigation are made as routine investigations does not destroy the attorney-client privilege. (Jessup v. Superior Court In and For Santa Clara County (1957) 151 Cal.App.2d 102.) Neither does the fact that the information contained in the reports might also be used for incidental purposes, such as for accident prevention, detract from their confidential aspect while they are being held for purposes of litigation. (Ibid.) However, where a communication is to serve a dual purpose, one for transmittal to an attorney in the course of professional employment and one not related to that purpose, the question presented to the trial court is which purpose dominates. (Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166.)
The Court finds that Osegura’s declaration supports the conclusion that the incident reports are prepared for the purpose of litigation and for the transmittal to an attorney. Osegura states the following:
• At the time of Plaintiff’s incident, the mall contracted with Professional Security Consultants (“PSC”) to provide security services for the mal. The mall requires PSC to prepare reports detailing any injury or property damage. There is a standard form that states “Attorney-Client Privileged Prepared for Litigation” used for this purpose, which is titled “Incident Report.” The reports are emailed directly to Risk Management following any incident. (Osegura Decl. ¶ 2.)
• The reports are required in any case in which someone alleges an injury at the mall since such incidents could result in litigation against the mall. The reports are designed to provide details of such incidents for future use by defense counsel in the event of litigation. (Osegura Decl. ¶ 4.)
• The incident involving Plaintiff occurred on June, 28, 2014. Following the incident, PSC filled out an incident report and sent them to Risk Management. A lawsuit was later filed and the mall retained defense counsel. A copy of the incident report was then sent to defense counsel for use in defendant the mall. (Osegura Decl. ¶ 4.)
Based on the foregoing, the Court finds that Defendant’s incident reports, which are prepared by Defendant’s contractor under Defendant’s direction, fall within the privilege since the dominant purpose of the reports involve transmittal to the attorney in the course of the professional attorney-client relationship under circumstances in which Defendant expected confidentiality. (Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166.) As such, Plaintiff’s request to compel Defendant’s further responses to Request Nos. 18 and 19 are denied as the reports are protected by attorney-client privilege.
CONCLUSION AND ORDER
Plaintiff’s motion is denied in its entirety. The Court denies both parties’ requests for attorney’s fees since both parties participated in meet and confer efforts and the main issue of this motion was not meritless.
Defendant is ordered to provide notice of this motion.

Case Number: BC618923    Hearing Date: January 23, 2017    Dept: 92

TYLER FOWLER, ET AL.,
Plaintiff(s),

vs.

THE KROGER CO., ET AL.,
Defendant(s).

Case No.: BC618923

ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT

DEPARTMENT 92 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS:
Complicated based upon either the number of pretrial hearings or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:
Transferred for all purposes to Judge Nancy Newman in Dept. WE-P of the West (Santa Monica) District.

Any pending motions or hearings, including trial or status conference, will be reset, continued or vacated at the direction of the newly assigned IC court.

Plaintiff shall give notice of the Transfer Order.

Case Number: BC619196    Hearing Date: January 23, 2017    Dept: 98

FRANCISCO ACUNA ALVARADO,
Plaintiff,
vs.

LMX LOGISTICS, LTD., et al.,

Defendants.

CASE NO: BC619196

[TENTATIVE] ORDER RE: DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. 98
1:30 p.m.
January 23, 2017

On May 6, 2016, Plaintiff Francisco Acuna Alvarado (“Plaintiff”) filed this action for alleged damages arising out of an April 30, 2016 vehicle collision. Plaintiff’s operative Second Amended Complaint (“SAC”) alleges causes of action for: 1) motor vehicle negligence; 2) general negligence; 3) negligence per se; and 4) Government Code section 835. Defendant City of Vernon (“Demurring Defendant”) now demurs to the first, third and fourth causes of action of Plaintiff’s SAC. Demurring Defendant also moves to strike certain portions of the SAC.

When any ground for objection appears on the face of a complaint, or from any matter of which the court may take judicial notice, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. § 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., §§ 430.10(e), (f). A court “must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff’s contentions nor conclusions of law or fact.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.

In support of his first cause of action for motor vehicle negligence, Plaintiff alleges that Demurring Defendant negligently operated, designed, maintained, controlled, and repaired the subject intersection and its traffic control devices so as to cause or contribute to the collision. In support of his cause of action for negligence per se, Plaintiff asserts that Government Code sections 835, 830.4, and 830.8 were in effect to protect Plaintiff and Demurring Defendant was in violation of these statutes. Lastly, in support of his Government Code section 835 cause of action, Plaintiff alleges that the intersection had a malfunctioning traffic control device which constituted a dangerous condition, Demurring Defendant’s employees created the dangerous condition, and the condition caused or contributed to the collision.

Demurring Defendant argues that Plaintiff’s first, third, and fourth causes of action fail to state sufficient facts and are uncertain.

As to his first cause of action, Plaintiff asserts that he is attempting to bring a cause of action for dangerous condition of public property. The Court finds Plaintiff’s claim for dangerous condition in his first cause of action is duplicative of Plaintiff’s fourth cause of action. Therefore, Demurring Defendant’s Demurrer as to the first cause of action against it is SUSTAINED.

Plaintiff contends that his cause of action for negligence per se against Demurring Defendant is sufficiently pled. The negligence per se doctrine provides for a presumption of negligence against a defendant if: 1) the defendant violated a statute, ordinance, or regulation of a public entity; 2) the violation proximately caused death or injury; 3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and 4) the person suffering the death or the injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. Cal. Evid. Code § 669.

Plaintiff bases his negligence per se claim against Demurring Defendant on Demurring Defendant’s violation of certain Government Code sections related to dangerous conditions of public property. Section 835 allows for liability against a public entity for a dangerous condition and sections 830.4 and 830.8 place limitations on that liability. They do not operate to impose any specific duty upon a public entity which might be violated, giving rise to a proper negligence per se claim. Thus, the Court finds that Plaintiff has failed to adequately allege plead the elements of negligence per se against Demurring Defendant. Demurring Defendant’s Demurrer as to Plaintiff’s third cause of action is therefore SUSTAINED.

Demurring Defendant argues that Plaintiff’s fourth cause of action for dangerous condition of public property fails because it is unclear what malfunction of the traffic control device is being alleged. If Plaintiff is alleging that an “all green lights” situation existed at the time of the incident, Demurring Defendant argues that this would directly contradict the SAC’s allegation that Defendant Guillermo Ortiz, Jr. illegally entered the intersection. If Plaintiff is alleging that the signal was red, flashing, or inoperative, Demurring Defendant contends that such allegations are insufficient to constitute a dangerous condition. Demurring Defendant cites to Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187 in support of its argument.

In Chowdhury, the plaintiffs sued the defendant city for damages arising out of a vehicle collision caused by inoperative traffic signals due to a power outage. Id., at 1190. The trial court awarded the plaintiffs damages against the city following a court trial, finding that the plaintiffs’ damages were caused by a dangerous condition of public property. Id. The appellate court reversed, holding that “obviously inoperative traffic signals during a power outage do not amount to a dangerous condition as a matter of law.” Id., at 1194. The court noted that a public entity that installs traffic signals and invites the public to rely on them may be liable if the signals malfunction in certain circumstances. Id., at 1195. However, given that the signals were extinguished during the power outage and had been effectively transformed into stop signs, the city could reasonably foresee that motorists would use due care at the intersection and could not be liable for the failure to do so. Id., at 1195-96.

At the demurrer stage, the only question before the Court is whether Plaintiff has adequately pled a cause of action for dangerous condition of public property, and the Court finds that he has done so. Plaintiff has alleged that there was a malfunctioning traffic control device which constituted a dangerous condition and caused or contributed to the subject collision, that the condition was caused by Demurring Defendant’s employees, and that Demurring Defendant had notice of the condition prior to the collision. These allegations satisfy the requirements of section 835 liability. Whether Plaintiff can prove these conditions is a question not relevant to this Demurrer.

In light of the foregoing, Demurring Defendant’s Demurrer to the first and third causes of action is SUSTAINED without leave to amend. Demurring Defendant’s Demurrer as to the fourth cause of action is OVERRULED.

Demurring Defendant also moves to strike Plaintiff’s prayer for punitive damages. Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294(a). However, pursuant to Government Code section 818, notwithstanding any other provision of law, a public entity is not liable for damages awarded under section 3294 of the Civil Code.

Demurring Defendant’s Motion to Strike is unopposed and GRANTED. Plaintiff’s prayer for punitive damages as to Demurring Defendant is hereby stricken.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC619419    Hearing Date: January 25, 2017    Dept: 98

LUIS VALLE,
Plaintiff,
vs.

PEPSI-COLA SALES AND DISTRIBUTION, INC., et al.,

Defendants.

CASE NO: BC619419

[TENTATIVE] ORDER GRANTING DEFENDANT’S DISCOVERY MOTIONS AND REQUEST FOR MONETARY SANCTIONS

Dept. 98
1:30 p.m.
January 25, 2017

On May 5, 2016, Plaintiff Luis Valle (“Plaintiff”) filed this action for alleged damages arising out of a July 22, 2014 vehicle collision. On August 10, 2016, Plaintiff filed an Amendment to Complaint naming Defendant New Bern Transport Corporation (“Moving Defendant”) as Doe 1. On August 23, 2016, Moving Defendant served Plaintiff with Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production, Set One. Declarations of Kathy Lerner, ¶ 4. Plaintiff has failed to provide responses. Id., ¶ 8. Moving Defendant therefore now moves to compel Plaintiff’s responses to its Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production, Set One, and for monetary sanctions.

A party who fails to serve a timely response to interrogatories or a request for production waives any objection to the interrogatories or request for production, including those based on privilege or work product. Cal. Code of Civ. Proc. §§ 2030.290(a), 2031.300(a). As no responses have been served by Plaintiff, Moving Defendant’s Motions to Compel Plaintiff to serve responses, without objections, to the outstanding Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production, Set One, are GRANTED. Plaintiff is ordered to serve responses within ten (10) days upon notice of this Order.

The Court must impose monetary sanctions, unless it finds Plaintiff acted with substantial justification or that circumstances make the imposition of the sanction unjust. Id., §§ 2030.290(c), 2031.300(c). The Court finds sanctions to be appropriate here.

Moving Defendant requests a total of $2,141.00 in monetary sanctions, contending that 5.6 hours were spent preparing these Motions and 3 hours will be spent appearing at the hearing, at a rate of $235.00 per hour. Moving Defendant also incurred two $60.00 filing fees.

The Court finds 1 hour to prepare these unopposed Motions and 1 hour to appear at the joint hearing, along with the filing fees, to be sufficient to compensate Moving Defendant. The Court therefore awards Moving Defendant a total of $590.00 in monetary sanctions against Plaintiff and his attorney of record, Robert J. Stoll, III, jointly and severally. Sanctions are to be paid within twenty (20) days upon notice of this Order.






Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC620069    Hearing Date: January 23, 2017    Dept: 91

Demurrer to the Complaint by Defendant Enterprise Rent-A-Car Company of Los Angeles, LLC (erroneously sued as Enterprise Rent-A-Car) to the Complaint of Plaintiff, filed on 12/7/16, is OVERRULED. Defendant is ordered to answer within 10 days.

Defendant has not established that the complaint is preempted by the Graves Amendment, which precludes vicarious liability against the owner of a motor vehicle if the owner is in the trade or business of renting, the owner rented the vehicle to a person, the harm arises out of the use, operation, or possession of the vehicle during the rental period, and the owner is not independently negligent or engaged in criminal wrongdoing. 49 USCS § 30106.

The court cannot take judicial notice of the fact that Enterprise Rent-A-Car is in the business of renting cars. Defendant relies on the Declaration of Adam Miller who asserts this as a fact. Miller Declaration ¶ 4. The court cannot take judicial notice of facts asserted in declarations. Bach v. McNelis (1989) 207 Cal. App. 3d 852, 865.

Additionally, the alleged facts do not demonstrate that the alleged harm resulted or arose “out of the use, operation, or possession of the vehicle during the period of the rental or lease,” which if shown, would preclude liability under the statute. 49 USCS § 30106. The complaint does not allege that a Doe or any other Defendant rented the vehicle and that the harm occurred during the period of rental or lease. Complaint, page 4.

Based on the allegations of the complaint, vicariously liability is also based on the allegation that Defendant, including Does, employed the persons operating the motor vehicle, and that Defendants were agents and employees of other Defendants, and acted within the course and scope of the agency Id. This supports vicarious liability arising from the employment and/or agency relationship, which is a separate basis for liability that does not arise out of the rental relationship.

The Graves Amendment also applies to preclude liability if there are no independent acts of negligence on the part of the owner. Section 30106(a)(2). Here, Plaintiff alleges that Defendants negligently entrusted the motor vehicle, supporting an independent act of negligence. Complaint, page 4. Such negligence does not arise out of the relationship between the driver and owner of an automobile, “but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known to the owner.' [Citations.] [¶] Under the theory of 'negligent entrustment,' liability is imposed on vehicle owner or permitter because of his [or her] own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency.” Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 708–09

Negligence claims can be alleged in general terms by stating the acts or omissions that were negligently performed.Greninger v. Fischer (1947) 81 Cal. App. 2d 549, 552; Guilliams v. Hollywood Hospital (1941) 18 Cal. 2d 97, 102 101.

General rules of pleading do not require that the plaintiff plead evidentiary facts supporting the allegation of ultimate fact. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 212; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1390.

Defendant also argues that the allegations are “nonsensical” in that Plaintiff pleads both that Defendant was operating the car and the employer of the operator at the same time. Demurrer, 10:20-24. First, Plaintiff alleges the claims against both Defendant and Does. Second, Plaintiff is entitled to allege alternative and inconsistent theories of recovery. Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.

Moving party is ordered to give notice.

Case Number: BC620325    Hearing Date: January 24, 2017    Dept: 73

1/24/17
Dept. 73
Rafael Ongkeko, Judge presiding

KENNETH R. KOONTZ, SR. v. TOWING SPECIALIST, INC., et al. (BC620325)

Counsel for plaintiff: None (self-represented)
Counsel for defendant/moving party Towing Specialist, Inc.: Tejas Patel; Caroline Kinoshita (Ford, etc.)
Other parties/counsel: Omitted.

Defendant Towing Specialist, Inc.’s motion for judgment on the pleadings (filed 12/13/16)

TENTATIVE RULING

Defendant Towing Specialist, Inc. dba Swanney & McDonald’s request for judicial notice is granted.

The motion for judgment on the pleadings is DENIED. From the matters judicially noticed, it appears that the Small Claims action involved the allegedly wrongful dispossession and illegal lien sale of Plaintiff’s mobile home, whereas this action involves the allegedly wrongful dispossession and sale of Plaintiff’s 2001 Chrysler Sebring car, and possibly a 1976 dodge Van RV. Whether these vehicles were involved somehow in the small claims case casting a preclusive effect in this case cannot be determined at this time.

“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 (citation omitted).

“The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (citations and quotations omitted). In addition to barring claims affirmatively asserted in a prior action, res judicata also applies to claims that could have been brought but were not. See Warga v. Cooper (1996) 44 Cal.App.4th 371, 378.

Here, as this is a motion for judgment on the pleadings, the court is unable to determine whether the two actions are based on alleged invasions of the same primary rights involving the same vehicle(s).

The motion for judgment on the pleadings is denied.

Reclassification- The parties should meet and confer and determine whether this matter can and should be reclassified as a limited jurisdiction matter. That issue is not before the court at this time.

Notice of ruling by moving party.

Case Number: BC621039    Hearing Date: January 20, 2017    Dept: 93

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 93


NORMA E. TELLEZ,

Plaintiff,


vs.


SIMRAN AHUJA, et al.,

Defendants.
Case No.: BC621039


Hearing Date: January 20, 2017


Time: 1:30 p.m.



[TENTATIVE] ORDER RE:


MOTION TO BE RELIEVED AS COUNSEL


Counsel Carpenter, Zuckerman & Rowley, LLP’s Motion to Be Relieved as Counsel is CONTINUED to February 3, 2017, at 1:30 p.m. to allow counsel to submit a supplemental declaration as to efforts to ascertain plaintiff’s address. Further, there is no proof of service as to plaintiff.
The Court considered the moving papers.
BACKGROUND
On May 26, 2016, Norma E. Tellez filed a complaint against Simran Ahuja and Russel Vaitha for motor vehicle negligence based on an incident that occurred on May 28, 2014.
On August 19, 2016, defendants filed an answer.
LEGAL STANDARD
The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398.
CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel Civil form (MC-053)).
Under California Rules of Professional Conduct, 3-700(C), “If rule 3-700(B) [mandatory withdrawal] is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: (1) The client . . . . (d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively and (f) breaches an agreement or obligation to the member as to expenses or fees.”
DISCUSSION
Plaintiff’s attorney of record, Carpenter, Zuckerman & Rowley, LLP, seeks to be relieved as counsel.
Counsel Pejman Ben-Cohen states in his declaration that there has been a breakdown in the attorney-client relationship. He also states that he has been unable to confirm plaintiff’s address or locate a more current address of the client after making the following efforts: mailing the motion papers to the client’s last known address, return receipt requested and calling the client’s last known telephone number. The proof of service does not indicate that plaintiff was served with the motion.
Trial is set for November 27, 2017.
The hearing is CONTINUED to allow counsel to file a supplemental declaration as to counsel’s efforts to locate client.
Counsel is ordered to provide notice of this ruling.
IT IS SO ORDERED.
DATED: January 20, 2017

_____________________________
Randolph M. Hammock
Judge of the Superior Court

Case Number: BC621363    Hearing Date: February 10, 2017    Dept: 98

STEPHANIE NAVARRO,
Plaintiff,
vs.

LANDRY’S SEAFOOD HOUSE-ARLINGTON, INC., et al.,

Defendants.

CASE NO: BC621363

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S RESPONSE TO SPECIAL INTERROGATORIES, SET ONE

Dept. 98
1:30 p.m.
January 10, 2017

On May 20, 2016, Plaintiff Stephanie Navarro (“Plaintiff”) filed this action against Defendant Bubba Gump Shrimp Co. Restaurants, Inc. (erroneously sued as Landry’s Seafood House-Arlington, Inc. (“Defendant”). On August 17, 2016, Defendant served Plaintiff with Special Interrogatories, Set One. Declaration of Connie L. Benson, ¶ 4. Despite several extensions of time to respond, Plaintiff has failed to provide responses. Id., ¶¶ 6-10. Defendant therefore now moves to compel Plaintiff’s responses to its Special Interrogatories, Set One.

A party who fails to serve a timely response to interrogatories or a request for production waives any objection to the interrogatories or request for production, including those based on privilege or work product. Cal. Code of Civ. Proc. §§ 2030.290(a), 2031.300(a). As no responses have been served by Plaintiff, Defendant’s Motion to Compel is GRANTED. Plaintiff is ordered to serve verified responses, without objections, to Defendant’s Special Interrogatories, Set One within five (5) days upon notice of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 10th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC622241    Hearing Date: January 23, 2017    Dept: 34

SUBJECT: Motions to compel further

Moving Party: Plaintiff Rajesh Manek

Resp. Party: Defendants American Medical Consulting Services LLC; Colorado Medical Finance Services LLC dba Gold Cross Capital LLC; Colorado Medical Consulting Services LLC; and Golden Sun Care Consulting LLC


The Court takes the instant motions OFF CALENDAR.

BACKGROUND:

Plaintiffs commenced this action on 5/15/16 against defendants for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) declaratory relief; (4) accounting; (5) interference with contractual relations; (6) interference with prospective economic advantage; and (7) violation of Business and Professions Code section 17200. Plaintiffs allege that the AMCS defendants provided consulting, management, and financial services and, until December 2015, they were owned and operated by James McNamara, husband of defendant Angie McNamara. (Compl., ¶¶ 13-14.) Between mid-2013 and December 2015, plaintiffs invested approximately $8 million in the AMCS defendants. (Id., ¶ 15.) In the fall of 2015, Manek and James discussed ways for plaintiffs to recoup their investments, and James explained that they would enter into a written agreement giving Manek an equity interest in the AMCS properties. (Id., ¶ 16.) In December 2015, James suffered a stroke that left him unable to personally operate the AMCS defendants. (Id., ¶ 17.) James’s son, Seph McNamara, thereafter sough additional investments from plaintiffs. (Id., ¶ 18.) Manek explained that he would not provide additional money without the previously discussed agreement. (Id., ¶ 19.) Seph thereafter drafted an agreement and represented that he had the authority to bind the AMCS defendants by virtue of his positions with those companies and a written power of attorney from James. (Id., ¶¶ 20-22.) Manek signed the 12/30/15 contract and provided the AMCS defendants with an additional loan. (Id., ¶ 23.) Seph signed the contract on behalf of James and the AMCS defendants. (Id., ¶ 24.) Plaintiffs allege that, despite the contract, defendants have failed and refused to honor the terms of the contract or recognize its validity. (Id., ¶ 28.) Manek spoke with Angie in April 2016, who stated that she was aware of the agreement but instructed Seph and the AMCS defendants not to honor it. (Id., ¶ 29.) Angie disputed Seph’s authority to enter into the contract. (Ibid.)

ANALYSIS:

A notice of motion to compel further responses must be served within 45 days after service of the responses in question (extended if served by mail, overnight delivery, or fax (see Code Civ. Proc., § 1013)); otherwise, the demanding party waives the right to compel any further response. (Code Civ. Proc., §§ 2030.300(c), 2031.310(c), 2033.290(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45 day time limit is mandatory and jurisdictional. (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) However, the parties can also agree in writing on a specific later date by which to file the motion to compel. (Code Civ. Proc., §§ 2030.300(c), 2031.310(c).)

Here, plaintiff fails to show that the instant motions were timely filed. Neither party provides copies of the subject discovery responses or proof of service thereof; therefore, the deadline to file the instant motion is unclear. Plaintiff’s counsel declares that the deadline for the instant motion was extended to run from the date of production of additional documents in another case, but there is no showing that this extension was made in writing as required by Code of Civil Procedure sections 2030.300(c) and 2031.310(c). (See Melzer Decl., ¶ 8.) Because the 45-day deadline is mandatory and jurisdictional, the Court cannot rule on the instant motions without plaintiff’s showing that the motions were timely brought.

Moreover, the merits of the motion cannot be fully determined because neither party provides copies of the subject discovery or responses. Without this evidence, it cannot be determined whether the separate statement accurately portrays the discovery.

Accordingly, the Court takes the instant motions OFF CALENDAR. Plaintiff may re-schedule the hearing if plaintiff provides copies of the relevant discovery and evidence that the deadline to file the motion was extended in writing.

The Court strongly encourages the parties to engage in further attempts to informally resolve the issues prior to re-setting the motions. The Court also reminds the parties that it is available for an Informal Discovery Conference to help resolve discovery issues. (See Dept. 34 Trial Orders §4.)

Case Number: BC622253    Hearing Date: January 20, 2017    Dept: 50

Superior Court of California
County of Los Angeles
Department 50

ROBIN EVERHART, an individual and derivatively on behalf of RIVAL SONS, INC.,
Plaintiff,
vs.
JAY BUCHANAN, et al.
Defendants. Case No.: BC 622253
Hearing Date: January 20, 2017

Hearing Time: 8:30 a.m.

ORDER RE:

DEFENDANT TOM CONSOLO’S DEMURRER TO COMPLAINT

Background
This action arises out of claims by Plaintiff Robin Everhart (“Plaintiff”) related to his former membership in the rock band, Rival Sons, and to his status and rights with respect to Rival Sons, Inc. Plaintiff, as an individual and derivatively on behalf of Rival Sons, Inc., filed this action on June 2, 2016 against Defendants Jay Buchanan, Scott Holiday, Michael Miley, Jane Johnson, Tom Consolo, and Rival Sons, Inc. (collectively, “Defendants”).
The Complaint alleges that Plaintiff is the co-founder and original bassist of Rival Sons; and a shareholder, director and officer of Rival Sons, Inc. The Complaint alleges that Consolo is the entertainment manager for Rival Sons and Rival Sons, Inc.
The Complaint asserts causes of action for (1) breach of fiduciary duty; (2) abuse of control; (3) conversion; (4) unfair competition – violation of Bus. & Prof. Code §17200 et seq.; (5) misappropriation; (6) fraud; (7) unjust enrichment; (8) negligence; (9) accounting; (10) imposition of constructive trust; and (11) declaratory relief. Only the eighth through eleventh causes of action are brought against Consolo.
Consolo now demurs to the eighth cause of action for negligence on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

Discussion
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
Here, with respect to the eighth cause of action against Consolo, the Complaint alleges the following: “As a veteran music manager, [Consolo] had a duty of at least, without limitation, a) ensuring that all copyright registrations were properly filed; b) ensuring that new records were not cross-collateralized; c) ensuring that proper accounting was done for the band and given to Plaintiff upon request; d) ensuring there was a proper winding up of the band and/or [Rival Sons, Inc.] upon Plaintiff’s departure, and e) ensuring that [Rival Sons] and [Rival Sons, Inc.] were truthful in there [sic] contracts and representations to others regarding the Masters.” (Complaint ¶92.) The Complaint alleges that Consolo breached these duties and that Plaintiff has been injured as a direct and proximate result. (Complaint ¶¶94-95.)
Initially, Consolo argues that Plaintiff’s negligence claim fails because Plaintiff is seeking tort damages for a purely contractual claim. (See, e.g., Aas v. Superior Court (2000) 24 Cal.4th 627, 643 (“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.”) (superseded by statute on another ground).) However, the Complaint does not allege that Consolo breached the terms of any agreement. There is no allegation that the duties that Consolo allegedly breached were duties arising from a contractual relationship. Rather, the Complaint alleges that Consolo owed Plaintiff these duties as a “veteran music manager.” (Complaint ¶92.)
Additionally, “conduct amounting to a breach of contract becomes tortious … when it also violates a duty independent of the contract arising from principles of tort law.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551; see also N. Am. Chem. Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 (“the same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts.”).) Thus, even if Plaintiff had alleged that Consolo’s conduct amounted to a breach of contract, the Complaint sufficiently alleges that Consolo breached duties that he independently owed under tort principles as Plaintiff’s music manager.
Consolo also argues that the Complaint fails to state facts to support Plaintiff’s claim that Consolo owed him a duty to ensure: (a) that all copyright registrations were filed; (b) that new records were not cross-collateralized; (c) that a proper accounting was done and given to Plaintiff upon request; (d) a proper winding up of the band and/or Rival Sons, Inc. upon Plaintiff’s departure; or (e) that Rival Sons and Rival Sons, Inc. were truthful in their contracts and representations to others regarding the Masters.
“To prevail in a negligence action, a plaintiff must show that the defendant owed a legal duty, the defendant breached that duty and the breach proximately caused injury to the plaintiff.” (J.L. v. Children's Inst., Inc. (2009) 177 Cal.App.4th 388, 396.) “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746-747.) “A complaint which lacks allegations of fact to show that a legal duty of care was owed is fatally defective. The existence of such a duty is properly challenged by demurrer and is a question of law for the court.” (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103, 1111 (internal citations omitted) (emphasis in original).)
“[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Thus, as a general proposition one ‘is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.’” (Flowers v. Torrance Mem'l Hosp. Med. Ctr. (1994) 8 Cal.4th 992, 997 (internal citations omitted).) “With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation. Thus, the standard for professionals is articulated in terms of exercising ‘the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.’” (Id. at 997-998.)
Here, the Complaint alleges that Consolo is a “veteran music manager.” (Complaint ¶92.) However, Plaintiff does not allege that Consolo owed Plaintiff a duty to use the knowledge, skill and care ordinarily possessed and employed by other professional music managers. Rather, Plaintiff identifies five specific duties that Consolo allegedly breached. Plaintiff cites to no authority demonstrating that a professional music manager legally owes these duties to his or her client. It appears that Plaintiff is conflating the issues of duty and breach. It is possible that Consolo’s conduct, such as failing to ensure that copyright registrations were filed, could amount to a breach of the duty to use such skill, prudence, and diligence as other professional music managers commonly possess and exercise. However, as alleged, Plaintiff is attempting to impose legal duties on Consolo that are not supported by law.
There are also issues related to the statute of limitations. Generally, the two-year statute of limitations set forth in CCP §339(1) applies to claims for professional negligence. (Roger E. Smith, Inc. v. SHN Consulting Engineers & Geologists, Inc. (2001) 89 Cal.App.4th 638, 642.) A cause of action for professional negligence “does not accrue until the client both sustains damage, and discovers, or should discover, his cause of action.” (Budd v. Nixen (1971) 6 Cal.3d 195, 203.) As discussed in Consolo’s demurrer, the allegations of the Complaint reveal that a number of the alleged breaches supporting Plaintiff’s negligence cause of action occurred more than two years prior to the filing of this action. In opposition, Plaintiff states: “While the breaches might have happened in 2013, Plaintiff was not aware of them prior to a period that would violated [sic] the statute of limitations.” (Opposition at 7:16-18.) However, “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (emphasis in original).) Plaintiff has not pleaded any facts to establish the applicability of the delayed discovery rule.

Conclusion
For the foregoing reasons, Consolo’s demurrer is sustained with leave to amend. Plaintiff is ordered to file a First Amended Complaint within 20 days of notice of this order.
Consolo is ordered to provide notice.

Case Number: BC622686    Hearing Date: January 25, 2017    Dept: 46

Case Number: BC622686
CRYSTAL L COUTU VS NORMAN G FERNANDEZ ET AL
1/25/2017
OSC Regarding Service of Defendant Fernandez
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
The matter is not ready for trial setting. Defendant Moy has been defaulted. After Defendant Fernandez obtained an order quashing service, Plaintiff has not filed a new proof of service as to Defendant Fernandez by 12/13/2016 as ordered on 11/23/2016. Plaintiff is ordered to file a proof of service as to Fernandez by 2/8/2017 or pay $250 sanctions. If Fernandez is not served with Summons and Complaint by 2/8/2017, the court will consider further sanctions including terminating sanctions. OSC regarding dismissal of action as to Fernandez and Case Management conference are set for 2/22/2017 at 8:30 a.m.
IT IS SO ORDERED:

Frederick C. Shaller, Judge

Case Number: BC624149    Hearing Date: January 20, 2017    Dept: 91

Defendant’s unopposed Motion for a Protective Order, filed on 12/16/16 is GRANTED.

Defendant has shown good cause to extend the time within which Defendant is required to respond to Form Interrogatories, Set One, and Request to Produce, Set One, propounded by Plaintiff on 10/6/16. Cal. Code Civ. Proc. § 2031.060(b); § 2030.090(b); Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1582.

Defendant has an additional 60 days to respond to the foregoing discovery, provided that defense counsel continue efforts to locate the Defendant. If responses are not provided by 3/21/17, then Plaintiff can move for relief, at Plaintiff’s option.

Moving party is ordered to give notice.

Case Number: BC625301    Hearing Date: January 23, 2017    Dept: 98

EDITH LINARES,
Plaintiff,
vs.

MARIA ULLOA, et al.,

Defendants.

CASE NO: BC625301

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO QUASH SERVICE OF SUMMONS

Dept. 98
1:30 p.m.
January 23, 2017

On June 29, 2016, Plaintiff Edith Linares (“Plaintiff”) filed this action against Defendant Maria Ulloa (“Defendant”) for alleged damages arising out of a July 24, 2014 vehicle collision. On September 20, 2016, Plaintiff filed a Proof of Service of Summons which indicates that Defendant was served on September 20, 2016 by personal service at 11578 Woodcock, San Fernando, California 91340. Defendant filed the instant Motion to Quash on December 22, 2016.

A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. Cal. Code of Civ. Proc. § 415.10. Service is deemed complete at the time of delivery. Id. On or before the last day of his or her time to plead or within any further time that the court may for good cause allow, a defendant may serve and file a motion to quash service of summons on the ground of lack of jurisdiction. Id. § 418.10(a).

Defendant failed to timely file this Motion. Service was complete on September 20, 2016 and Defendant thereafter had thirty days to bring her Motion. This Motion was filed on December 22, 2016, well beyond the statutory time limit.

In light of the foregoing, Defendant’s Motion to Quash is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC625702    Hearing Date: January 20, 2017    Dept: 32

WENDY HARDY,
Plaintiff,
v.

ANTELOPE VALLEY HEALTH CARE DISTRICT, et al.,

Defendants.
Case No.: BC627676

Hearing Date: January 20, 2017

[TENTATIVE] ORDER RE:
DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT





STATEMENT OF THE CASE
This action arises out of Plaintiff Wendy Hardy’s employment with Defendant Antelope Valley Health Care (“AVH”). In her operative First Amended Complaint (“FAC”) Plaintiff alleges that her supervisor, Defendant Ryan White (“White”) made harassing comments towards her. Plaintiff asserts causes of action for (1) discrimination, (2) harassment based on sex, (3) failure to prevent discrimination and harassment, and (4) retaliation.
For purposes of this demurrer, Plaintiff has alleged that White sexually harassed Plaintiff by belittling Plaintiff on multiple occasions (FAC, ¶¶ 15-16, 20); gossiping about Plaintiff (id., ¶¶ 17-18); ignoring Plaintiff after she raised complaints against him (id., ¶ 27, 31); yelling and pointing his finger at her in front of other staff members (id., ¶ 30); and criticizing Plaintiff for deficiencies that a male colleague committed (id., ¶¶ 20-21.)
Plaintiff filed this action on August 3rd, 2015. The FAC was filed on October 13th, 2016. Presently before the Court is Defendant AVH’s demurrer to the FAC as to the second cause of action for harassment.
Defendant AVH demurs to the second cause of action (harassment based on sex) of the FAC for failure to state a claim.
ANALYSIS
Standard for Demurrers. Defendant AVH demurs to the second cause of action (harassment based on sex) of the FAC for failure to state a claim. A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (See Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.4th 726, 732.) The Court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)
Second Cause of Action – Harassment based on Sex [Cal. Gov’t Code § 12940(j)]. The elements of harassment are: (1) the employer harassed employee; (2) on the basis of race, sex or other grounds specified in Gov. Code § 12940(h); and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment. (See Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.)
Plaintiff has added new allegations in her FAC, which now states White:
• Insulted Plaintiff “on the basis of her performance” and questioned how she obtained her position; (FAC, ¶¶ 15-16)
• Called Plaintiff a “poor performer,” a “poor leader,” and told co-workers that he wanted to get rid of Plaintiff because she did not know how to perform her duties; (Id., ¶¶ 17-18, 20)
• Observed White address male colleagues in a cordial and friendly manner in contrast to how he interacted with Plaintiff; (Id., ¶ 19)
• Failed to discipline or criticize Plaintiff’s male colleagues; (Id., ¶¶ 20-22)
• Assigned to Plaintiff a greater workload than to the male managers; (Id., ¶¶ 23, 29)
• Dismissed Plaintiff’s (work-related) ideas; (Id., ¶ 24)
• Ignored Plaintiff after she made a complaint to Human Resources about him; (Id., ¶ 27, 31)
• Asked Plaintiff to re-write her job description to incorporate non-managerial duties into her managerial position; (Id., ¶ 28)
• Yelled at Plaintiff, and accused her of being “the problem” when, at a staff meeting, Plaintiff raised a concern about a male manager failing to follow confidentiality procedures. (Id., ¶ 30.)
These new allegations still fail to state a claim for harassment. Instead, they only provide further examples of White’s alleged outspoken disapproval of Plaintiff’s work performance, overworking Plaintiff, or even treating Plaintiff differently than her two male colleagues. (See FAC, ¶¶ 14, 17-22, 24, 28-29.) “[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification or meanness or bigotry, or for other personal motives.” (See Reno v. Baird (1998) 18 Cal.4th 640, 645.) The California Code of Regulations defines “verbal harassment” as “epithets, derogatory comments or slurs on a basis enumerated in the [FEHA].” (See 2 Cal. Code Regs. § 11019(b)(1).) Further, Plaintiff must show that the harassment was sufficiently severe or pervasive to alter the conditions of employment. (See Etter, 67 Cal.App.4th at 465.) Examples of “severe” harassment include lunging, stalking, making threating physical gestures, and name-calling. (See E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840; see also Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30.)
Here, in contrast, Plaintiff’s allegations are limited to “unfair” performance evaluations, decisions regarding assignments, and disciplinary action (FAC, ¶¶ 15-31.) Plaintiff even concedes that White (allegedly) insulted Plaintiff “on the basis of her performance.” (FAC, ¶ 15.) Plaintiff makes no allegations that White made sex-based comments or gestures, or engaged in any other sex-based offensive messaging. In effect, Plaintiff has neither engaged in “meanness or bigotry, or other personal motives” (see Reno, 18 Cal. 4th at 645) nor has she suffered “severe or pervasive” harassment. (See Etter, 67 Cal.App.4th at 465.) Plaintiff’s second cause of action for harassment thus fails as a matter of law.
Plaintiff cites Roby v. McKeeson Corp. (2009) 47 Cal.4th 686 and Landucci v. State Farm Insurance Company (N.D. Cal. 2014) 65 F.Supp.3d 694, in an attempt to show that discriminatory personnel actions may independently uphold a harassment claim. Plaintiff’s interpretation is misguided; Roby and Landucci held that discriminatory personal actions can form the basis of a harassment claim, but only when bolstering evidence of harassment. (See Roby, 47 Cal.4th at 709; see also Landucci, 65 F.Supp.3d at 704.) Plaintiff’s case is easily distinguished from Roby and Landucci because Plaintiff’s case offers no evidence of harassment (therefore there is nothing to bolster). In contrast, Roby involved a supervisor making “demeaning comments to Roby about her body odor and arm sores… [and] demeaning facial expressions and gestures toward Roby, and… disparate treatment of Roby in handing out small gifts…” (Roby, 47 Cal.4th at 709); while Landucci involved a supervisor making offensive remarks about non-work related topics like the employee’s choice of clothing, attitudes and opinions. (See Landucci, 65 F.Supp.3d at 704.) Plaintiff alleges nothing like that here. Because Plaintiff’s allegations of discriminatory personnel actions stand alone, Roby and Landucci do not apply.
The Court has already given Plaintiff an opportunity to amend her complaint as to the second cause of action for harassment. Plaintiff’s FAC, however, only presents more facts alleging “unfair” performance evaluations, decisions regarding assignments, and disciplinary action. (FAC, ¶¶ 15-31.) Such facts, no matter how voluminous, are insufficient to state a claim for harassment under the foregoing authorities. There appears no reasonable probability that the FAC’s defects can be cured by amendment. (See Am. Home Ins. Co. v. Traveler’s Indem. Co. (1981) 122 Cal.App.3d 951, 968.) Plaintiff has not met her burden of showing how the defects may be cured. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Accordingly, the Court sustains without leave to amend Defendant AVH’s demurrer to the FAC as to the second cause of action.

Case Number: BC625976    Hearing Date: January 20, 2017    Dept: 91

Defendant’s two (2) unopposed Motions for Order Compelling Response to Interrogatories and Inspection Demand and for Sanctions, filed on 11/10/16, are GRANTED.

Plaintiffs, Sim Kong Vasconez and Carlos Barron, are ordered to provide verified responses without objection to Form Interrogatories, Set One, and Inspection Demand, Set One, within 10 days. Cal. Code Civ. Proc. §§ 2030.290(b), 2031.300(b).

The court imposes total sanctions against both Plaintiffs and their counsel of $406 for both motions for the failure to submit to an authorized method of discovery. Cal. Code Civ. Proc. §§2023.010(a)(4); 2023.010(b)(1).

Moving party is ordered to give notice.

Case Number: BC626242    Hearing Date: January 20, 2017    Dept: 46

Case Number: BC626242
TIMOTHY R NETT VS DIMITRI CHAMI ET AL
Filing Date: 07/06/2016
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)
Status: Pending
1/20/2017
Case Management Conference
OSC regarding Service/Default of Cross-Defendants
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING
The matter is still not ready for trial setting. Case Management Conference is continued to 2/17/2017 at 8:30 a.m. in Dept. 46.
There is still no proof of service on the Kennedy Cross-Complaint as to Cross-Defendants Steffan or Kerber Bros. While Clear Water Pools (Served 11/19/2016), MMC Hernandez (Served 11/21/2016), and High Desert Gunite (11/17/2016) were served with the Cross-Complaint, there has been no response to the Cross-Complaint filed. Defendant/Cross-Complainant John Thomas Kennedy, an individual, and dba Southern Comfort Pools & Spas is ordered to file a proof of service as to Steffan and Kerber Pools and obtain a response to the Cross-Complaint, dismiss, or file a Request for Entry of Default as to Cross-Defendants Clear Water Pools, MMC Hernandez, and High Desert Gunite bu by 2/10/2017 or pay $250 sanctions pursuant to CRC 2.30 for violation of CRC 3.110. If there is no compliance with this order then the Cross-Defendant will be dismissed or further sanctions will be issued. OSC regarding compliance with this order and dismissal of non-appearing Cross-Defendants on the Kennedy Cross-Complaint is set for hearing on 2/17/2017 at 8:30 a.m. in Dept. 46.
IT IS SO ORDERED:

Frederick C. Shaller, Judge

Case Number: BC626390    Hearing Date: January 20, 2017    Dept: 91

The unopposed Motion to Be Relieved as Counsel for Plaintiff, Carolyn Martone, filed on 9/2/16, and continued from 11/17/16 and 12/20/16 is TAKEN OFF CALENDAR.

There is no indication that counsel gave the client notice of the court’s ruling of 11/17/16 or of 12/20 as ordered, giving notice that this matter was continued to 1/20/17.

There is no proof of service attached showing the date and manner of service of the notice, motion and proposed order. Cal Rules of Court, Rule 3.1362(d). Counsel filed a declaration on the required Judicial Council form, but served only the declaration on the client. The proposed order must be completed and lodged with the court and served on the client, which is to be reflected on the proof of service. Cal Rules of Court, Rule 3.1362(e).

Moving party is ordered to give notice.

Case Number: BC626642    Hearing Date: January 23, 2017    Dept: 51

Background

Plaintiff sues defendants for failure to pay it $8 million pursuant to a contract in exchange for drafting a report about the pharmaceutical industry. According to the allegations, plaintiff is Kris Hamburger’s assignee. Hamburger and defendants agreed that Hamburger would be defendants’ consultant and provide a report about the “pharmaceutical market, past and future,” in exchange for $8 million. Thus, Hamburger prepared a report about “the pharmaceutical market, past and present.” On September 24, 2014, Hamburger delivered the report and requested payment, but defendants failed to pay.

On July 11, 2016, plaintiff filed a complaint and on November 18, 2016, the operative first amended complaint (FAC) for (1) breach of contract and (2) common counts – work, labor, services rendered.

On December 19, 2016, defendants filed this opposed demurrer for insufficient facts and uncertainty. Defendants’ counsel submitted a substantially compliant meet and confer declaration. CCP § 430.41(a); Humphrey Decl. ¶ 2. The Court considered the moving, opposition, and reply papers, and rules as follows.

The demurrer addresses three causes of action: (1) breach of contract, (2) common counts – money had and received, and (3) common counts – work, labor, services rendered. This second cause of action does not appear in the FAC, rendering the demurrer in this regard moot.

Demurrer Standard

A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). Thus, concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action, i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Garcetti v. Superior Court (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113 (stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”). Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. CCP § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191. A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine to what he or she is required to respond. For example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants, a complaint is uncertain. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted)).

Sham Pleading

Defendant argues that the FAC is a sham pleading because of certain semantic inconsistencies with the initial complaint and internally.

Generally, for purposes of demurrer, all pleaded facts are deemed to be true, except “where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.” Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384. In Owens, the court of appeal stated, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” Id. “‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ [Citation]. … [S]uperseded pleadings may be used at trial as admissions against interest; however, the party who made the pleadings must be allowed to explain the changes. [Citations]. This general rule usually precludes summary judgment that relies on a superseded pleading. [Citations]. The sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts.’ [Citation].” Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426.

Here, the complaint used the term “business transaction” to describe the parties’ alleged agreement. Substituting “business transaction” with the allegations that the parties agreed that plaintiff would prepare a report in exchange for $8 million is not inconsistent but rather a more specific description of the business transaction into which the parties entered. Defendants offer no authority providing that “business transaction” necessarily means something other than what is pled in the FAC; their assertion that “business transaction” is limited to “mergers, acquisitions, or some sort of deal between businesses” is unsupported and unconvincing. DEM 6:9-10.

Defendants' other arguments about the FAC itself being internally inconsistent are not subject to the sham pleading doctrine because the doctrine applies when comparing two successive pleadings. The Court appropriately addresses defendants’ other purported sham pleading arguments below in the proper context of insufficient facts.

Therefore, the sham pleading doctrine does not bar the FAC. The demurrer is OVERRULED on this ground.

First COA: Breach of Contract

The elements of a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830. To plead the existence of an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms. See Amid v. Hawthorne Community Med. Group (1989) 212 Cal.App.3d 1383.

Here, the FAC does not allege performance. It alleges that Hamburger and defendants agreed that Hamburger would be defendants’ consultant and provide a report about the “pharmaceutical market, past and future,” in exchange for $8 million. Consequently, Hamburger prepared a report about “the pharmaceutical market, past and present.” On September 24, 2014, Hamburger delivered the report and requested payment, but defendants failed to pay.

These allegations are insufficient to allege plaintiff’s performance because the alleged agreement required Hamburger to produce a report about the past and future, not past and present. The opposition does not address this defect or indicate that it can be remedied by amendment.

The demurrer is SUSTAINED WITHOUT LEAVE for insufficient facts alleged to plead plaintiff’s performance.

Second COA: Common Counts – Work, Labor, Services Rendered

“The usual form of common count for services rendered ‘alleges that they were performed at the request of defendant and that he promised to pay for them.’ [Citation.]” Evans v. Zeigler (1949) 91 Cal.App.2d 226, 230 (citation omitted).
“‘[I]f a contract is fully executed upon the part of plaintiff and payment in money is to be made, plaintiff may either elect to sue upon the contract or upon the common count for the reasonable value of services rendered.’ [Citation.] [¶] Th[is] rule … applies to the manner of pleading a cause of action to recover upon a claim for services rendered pursuant to a contract; allows a party who has fully performed his part of a contract for the rendition of services, where nothing remains to be done except the payment of money by the other, to sue specially on the contract or generally on the common count [citations]; and permits recovery where the common count alleges a cause of action for indebitatus assumpsit, although recovery also has been permitted under quantum meruit allegations. [Citations.] In any event, under well settled rules, the amount recoverable may be limited by the contract. Where a person fully performs his part of an agreement to render services for a stipulated consideration in money, although he may recover therefor in an action upon a common count, if the only unperformed part of that agreement is the payment of a sum of money constituting a liquidated debt, the amount of recovery is limited to that agreed to be paid. [Citations.]” Higgins v. Desert Braemar, Inc. (1963) 219 Cal.App.2d 744, 751.

Here, as discussed above, the FAC alleges insufficient facts to plead that Hamburger fully performed his obligation pursuant to the underlying contract, and the opposition failed to propose a remedy. Accordingly, the demurrer is SUSTAINED WITHOUT LEAVE.

Conclusion

The demurrer is SUSTAINED WITHOUT LEAVE. Defendants to submit a proposed order and judgment of dismissal within five days, and give notice.

Case Number: BC627508    Hearing Date: January 25, 2017    Dept: 46

Case Number: BC627508
DANIEL MARTINEZ ALVAREZ VS SKY READY MIX INC ET AL
1/25/2017
Order to Show Cause Re Sanctions Re Default of Sky Ready Mix

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day. The court was unable to give e-mail notification to counsel for Plaintiff since he does not publish his e-mail address.
RULING
OSC is discharged AS Sky Ready Mix, Inc. Answered the Complaint on 12/21/2016. No sanctions are issued. No appearance is necessary.
IT IS SO ORDERED:

Frederick C. Shaller, Judge

Case Number: BC627676    Hearing Date: January 23, 2017    Dept: 32

SAID ALMORADI,
Plaintiff,
v.

FORD MOTOR COMPANY, et al.,

Defendants.
Case No.: BC627676

Hearing Date: January 23, 2017

[TENTATIVE] ORDER RE:
UNOPPOSED DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

UNOPPOSED MOTION TO STRIKE PUNITIVES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT




BACKGROUND
Plaintiff filed this action on July 21, 2016 alleging four causes of action: (1) breach of implied warranty of merchantability; (2) breach of express warranty under the Song-Beverly Warranty Act; (3) violation of the Consumer Legal remedies act; and (4) Violation of the Unfair Competition Laws, §17200 et seq.
After engaging in meet and confer discussions, Plaintiff filed the FAC on September 30, 2016. Defendant demurred on November 8, 2016 to Plaintiff’s Third and Fourth Causes of Action.
DISCUSSION

I. DEMURRER.
A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal. App. 4th 612, 616.)
Third Cause of Action- Violation of the Consumer Legal Remedies Act
The Consumers Legal Remedies Act, Civil Code §1770, prohibits “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” §1770 lists twenty-seven unlawful acts and sets forth a list of remedies in §1780. The practices proscribed by the Consumers Legal Remedies Act (CLRA) include a proscription against a concealment of the characteristics, use, benefit, or quality of the goods contrary to that represented. Klein v. Chevron U.S.A., Inc. (App. 2 Dist. 2012) 137 Cal.Rptr.3d 293, 202 Cal.App.4th 1342
Plaintiff alleges that Defendants violated §1770(a)(5), §1770(a)(7), and §1770(a)(14). Specifically, Plaintiff alleges that Defendants have engaged or attempted to engage in unfair or deceptive acts or practices, including, but not limited to: (a) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have; (b) representing that goods or services are of a particular standard, quality, or grade, if they are another; (c) representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.” (Plaintiff’s First Amended Complaint, ¶40.)
Defendant argues that Plaintiff fails to state sufficient facts constituting a cause of action as required by CCP §430.10(e) and that Plaintiff’s allegations are uncertain, ambiguous, and unintelligible in violation of §430.10(f). Specifically, Defendant argues that Plaintiff fails to properly allege any facts showing how, when, where, to whom and by what means the representations made by Defendants were tendered by Defendants to Plaintiffs and how these statements were likely to deceive a reasonable consumer.
First, Defendant argues that Plaintiff fails to allege that the selling dealership was aware of an open recall applicable to the Subject Vehicle. Second, Defendant argues that Plaintiff has not identified how Defendant Ford was even involved in the sale or had any communication with Plaintiff prior to Plaintiff’s purchase of the subject vehicle.
In ¶9, Plaintiff states that “Dealer’s salesperson failed to disclose that the airbag was defective prior to Plaintiff purchasing the Subject Vehicle… Defendants never informed Plaintiff of the defect present in the subject vehicle prior to sale.” FAC, ¶9. In ¶41, Plaintiff states that “Defendants misrepresented the safety of the subject Vehicle by allowing the subject Vehicle to be sold with a defective air bag inflator and representing that Defendant would repair any defects in the vehicle upon notification.” FAC, ¶41.
Plaintiff has not alleged facts in its First Amended Complaint that Defendant Ford Motor Company was involved in any misrepresentation or any communication with Plaintiff. Furthermore, Plaintiff has not alleged that Defendant Citrus Motors knew, concealed, or misrepresented any material information as to the subject vehicle. This Court finds that Plaintiff merely incorporated conclusory statements of fact alleging that Defendants misrepresented and concealed material facts without alleging ultimate facts.
Defendant also argues that Plaintiff failed to notify Defendants of the CLRA violations as required by Civil Code §1782(a). §1782(a) requires that a consumer notify the alleged infringer 30 days or more prior to the commencement of an action for damages under §1770.
The “purpose of Consumers Legal Remedies Act (CLRA) notice requirement is to allow a defendant to avoid liability for damages if the defendant corrects the alleged wrongs within 30 days after notice, or indicates within that 30-day period that it will correct those wrongs within a reasonable time.” Morgan v. AT & T Wireless Services, Inc. (App. 2 Dist. 2009) 177 Cal.App.4th 1235. “A plaintiff's failure to comply with Consumers Legal Remedies Act (CLRA) notice requirements requires dismissal of the claim until 30 days or more after the plaintiff complies with the notice requirements, rather than dismissal with prejudice.” Id. If, within the 30-day prefiling notice period, the prospective Consumers Legal Remedies Act (CLRA) defendant corrects the alleged wrongs, or indicates that it will make such corrections within a reasonable time, no cause of action for damages will lie. Lafferty v. Wells Fargo Bank (App. 3 Dist. 2013) 153 Cal.Rptr.3d 240, 213.
Defendant alleges that Plaintiff did not give proper notice of the CLRA claim because Plaintiff gave Defendant Ford its notice for the CLRA claim 27 days after filing its complaint and has not provided notice to Defendant Citrus Motors. This Court finds that Plaintiff has not complied with the notice requirement under §1782(a) and the CLRA cause of action must be dismissed without prejudice until proper notice is provided to Defendants and Defendants do not “correct, repair, replace, or otherwise rectify the goods or services.”
Defendants demurrer to the Third Cause of Action is SUSTAINED WITHOUT leave to amend.
Fourth Cause of Action- Violation of California Business and Professions Code §17200 et seq
Defendants demur to the Fourth Cause of Action arguing that Plaintiffs’ allegations do not amount to a cause of action under §17200 et seq. A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of Calif., Inc. (1994) 14 Cal.App.4th 612, 619. A demurrer is properly sustained as to this cause of action if the complaint identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting violation. Id.
This Court finds that Plaintiff has stated sufficient facts to state a cause of action for unfair business acts and practices. First, in ¶46, Plaintiff realleged each paragraph of the First Amended Complaint, which includes the violations of Song-Beverly Consumer Warranty Act and the California Commercial Code §2313. Furthermore, in ¶49, Plaintiff alleges that “Defendants have engaged in ‘unlawful’ business acts … by manufacturing and/or distributing into the stream of commerce the subject Vehicle that contained defects that can cause serious injury or death. In conjunction with ¶10-13, the facts are described with “reasonably particularity.” While these allegations suffice to Defendant Ford Motors they do not particularly describe how Defendant Citrus Motors Inc., an automobile dealership, was engaged in unlawful, fraudulent, or unfair business practices. Plaintiff has not alleged that Defendant knew about the alleged defects at the time of the sale or concealed material facts.
Defendant’s demurrer to the Fourth Cause of Action is OVERRULED as to Defendant Ford Motor Company and SUSTAINED WITHOUT leave to amend as to Defendant Citrus Motors.
II. MOTION TO STRIKE
In cases where a portion of a cause of action is substantively defective on the face of a complaint, a motion to strike may be proper. (Id.; see also CCP § 437 [“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”].) A court may, upon the motion of a party or in its own discretion, strike out: (1) “any irrelevant, false, or improper matter inserted in any pleading”; or (2) “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436.) However, “matter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)
Regarding the instant matter, plaintiff has plead insufficient facts to establish fraud, malice or oppression. Accordingly, Defendants’ Motion to Strike punitive damages is GRANTED.
III. Conclusion.
Defendants demurrer to the Third Cause of Action is SUSTAINED WITHOUT leave to amend.
Defendant’s demurrer to the Fourth Cause of Action is OVERRULED as to Defendant Ford Motor Company and SUSTAINED WITHOUT leave to amend as to Defendant Citrus Motors.
Defendants’ Motion to Strike punitive damages is GRANTED.
Defendant to file answer to FAC within 10 days of this order.

Case Number: BC628141    Hearing Date: January 27, 2017    Dept: 46

Case Number: BC628141
ALIA URBANSKI VS 9039 SUNSET BOULEVARD LLC
Filing Date: 07/22/2016
Case Type: Other Employment Complaint (General Jurisdiction)

1/27/2017
Conference-Case Management

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING
The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.
TENTATIVE RULING

CASE MANAGEMENT ORDER
The following trial and pretrial dates are set and Case Management Orders are made in this matter.
Note 1 Select Mediator 2/3/2017
Note 1 Complete Mediation 5/22/2017
Note 1 Post-Mediation Hearing / Further Case Management Conference per CRC 3.723 5/23/2017 8:30 a.m.
Notes 2 & 7 Trial and Delivery of Evidence Books, Deposition Transcripts 8/24/2017 9:30 a.m.
Note 3 Discovery Deadline including hearing on motions related to discovery 7/24/2017
Note 4 In Person Meet and Confer Deadline Re Trial Documents 7/12/2017
Note 5 File, lodge in Dept 46, and serve TRIAL DOCUMENTS 8/4/2017
Note 6 Final Status Conference, ruling on MIL, determination of compliance with the CMO, and Presentation of “trial readiness binder(s)” 8/8/2017 8:30 a.m.
Trial 8/23/2017 9:30 a.m.

Note 1: Mediation. The parties appear to agree to participate in mediation. Therefore, if the parties both agree to participate in mediation, then the parties are ordered to select a mutually agreeable mediator by 2/3/2017, complete mediation by 5/22/2017 and then return to Dept. 46 for post-mediation conference on 5/23/2017 at 8:30 a.m. in Dept. 46. The parties must return to Dept. 46 for Further Case Management Conference on 5/23/2017 at 8:30 a.m. in Dept. 46 even if mediation process is not started or, if started, remains incomplete.
Note 2: Trial Date. Trial is set for 8/23/2017 at 9:30 a.m. in Dept. 46.
Note 3: Discovery/Motion Cut-Off. Subject to CCP §2024.010 (motions) and CCP §2034.010 (expert depositions and motions relating thereto) or other statutory exceptions, deadline for completion of all written discovery, depositions, and motion practice shall be 7/24/2017.
Note 4: IN PERSON MEET AND CONFER – LR 3.25(g)(2). Counsel for the parties are ordered to meet and confer in person (face-to face) not later than 7/12/2017 to discuss, plan, determine the timing of receipt of necessary information for preparation of the trial documents including written opposition positions as to any matters which are the subject of motions in limine, and agree as to preparation and delivery of essential trial documents to the court in a timely manner as to the following. These documents must be filed, lodged in Dept. 46, and served on the opposing party such that actual delivery on the other party and on the court by five court days prior to the final status conference. Hearing on motions in limine and review of compliance with this order shall be at the Final Status Conference date.
(1) Motions in Limine. Identify, and if possible, come to agreement regarding evidentiary issues that may be addressed in a motion in limine by each side and filing of papers not later than the deadline for filing and lodging motions in limine. The parties are to comply with L.R. 3.57 regarding Motions in Limine. The court will not entertain boilerplate motions in limine such as “evidence not disclosed in discovery” or “opinions not disclosed by expert deposition” unless the motion in limine is addressed to a very specific opinion, exhibit, or factual issue.
(a) Stipulation in lieu of motion. A potential solution to an evidentiary admissibility dispute is to stipulate that the parties will not mention to the jury a particular opinion, exhibit, or factual issue or matter until foundation is laid at trial and an objection raised at trial is overruled. Any stipulation shall be stated in an abbreviated writing served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(b) Joint Statement Regarding Motions in Limine for represented parties. If agreement cannot be reached, and all parties interested in the motion are represented by counsel, the moving party shall be responsible to file a JOINT STATEMENT regarding the motion in limine and the opposing party shall be responsible to state his/her/its position in writing in a timely manner to permit the filing of the joint document. The moving party should lodge directly in Dept. 46 and, separately, file a JOINT statement that addresses the evidence sought to be excluded or limited and the position of the moving party, the counter position of the opposing party, and any reply.
(c) Motion in Limine Form and Timing for Uncooperative Parties or Self-Represented Parties. Motions in limine by or against uncooperative or self-represented parties must be filed and served in accordance with L.R. 3.25(f)(2) - with notice as required by CCP §1005 and CCP §1013 - with the hearing date of the Final Status Conference.
(2) Witness List. Identify all non-impeachment and non-rebuttal witnesses in a JOINT witness list which shall include the names of all witnesses who may be called at trial, by whom to be called, and the estimated time for direct and cross-examination. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(3) Exhibit List. Identity of exhibits to be listed on a JOINT EXHIBIT LIST. Any numbering system the parties mutually agree upon is acceptable to the court, but designations may not be duplicated. The JOINT WITNESS LIST shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. The parties shall file the JOINT EXHIBIT LIST in the format of a table with a row for each exhibit and with columns for the number, description, who is offering the exhibit, whether the parties stipulate to authenticity, whether the parties stipulation to admission, whether the parties object to admission and why, when identified and when admitted. An example of the format is the LASC form, LACIV 216, which may be used in lieu of a specially prepared table.
(4) Actual Trial Exhibits in JOINT TRIAL Binder(s). The method and timeline for actual exchange of all anticipated trial exhibits except for those for solely impeachment or rebuttal writings. The parties shall work together to place all exhibits, where possible, into three-ringed binders with the actual exhibits marked with the appropriate numbers which were assigned to each exhibit on the JOINT EXHIBIT LIST. A multipage exhibit should have each page sub-numbered for reference during testimony. Any writing or exhibit not listed on the joint exhibit list and actually produced in full, complete, and final form to all parties by five court days prior to the FSC will be excluded at trial. In order to prove compliance with this order in the event of any disputes regarding compliance with the actual disclosure of exhibits requirements, the original exhibit book must be brought to the Final Status Conference and the parties shall each separately assure that all parties have reviewed or had the opportunity to review the JOINT EXHIBIT BOOK before the matter is called for FSC.
(5) Jury Instructions. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE READ TO THE JURY of any CACI, BAJI, or Special Jury Instructions are to be filed with the court in compliance with CRC 2.1055. The parties are to make all the fill-ins required by the jury instructions. Jury instructions shall be filed in three groups: Full and complete Joint Instructions for which there is no dispute (undisputed); Full and complete Instructions proposed by Plaintiff and disputed by other parties; Full and complete instructions proposed by Defendants and disputed by Plaintiff or other parties. The ACTUAL TEXT OF JURY INSTRUCTIONS shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(6) Special Verdict Forms with Interrogatories. For jury trials, the identity of and the ACTUAL TEXT IN A FORMAT READY TO BE SUBMITTED TO THE JURY OF ANY agreed SPECIAL VERDICT FORM(s) WITH INTERROGATORIES. The SPECIAL VERDICT FORM(s) WITH INTERROGATORIES shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC. If the parties cannot agree on a verdict form, the parties must submit their own full and complete jury ready special verdict form. The ACTUAL TEXT in JURY READY form shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
(7) Joint Statement of Case. For jury trials, the text of a jointly worded statement of the case for the jury to be read to the jury as an introduction to the case prior to jury selection. The JOINT STATEMENT OF CASE shall be served, lodged in Dept. 46, and filed with the court five court days in advance of the FSC.
Note 5: Timing for Trial Documents. ALL TRIAL DOCUMENTS (Except Motions in Limine which should have already been served) MUST BE ACTUALLY RECEIVED IN DEPT. 46 NOT LATER THAN 8/4/2017. A courtesy copy may be lodged directly in Dept. Trial documents are those listed as items 1 – 7 under Note 4. These documents must be served, lodged in Dept. 46, and separately filed with the court not later than five court days in advance of the Final Status Conference. In the event there are uncooperative parties who will not meet and confer or comply with the joint document preparation requirements or for self-represented parties, Motions in Limine are to be served by mail with notice compliant with CCP §§1005 and 1013 and the parties may unilaterally comply by filing separate trial documents. However, the court will impose monetary and/or evidentiary sanctions for a represented party’s failure to comply in good faith.
Note 6: Final Status Conference. Final Status Conference is set for 8/8/2017 at 8:30 a.m. in Dept. 46. At the final status conference the court will determine trial readiness and will receive or review any disputed trial readiness binder(s) and review the trial documents and determine compliance with the Case Management Order including: (1) Review of Joint Witness List; (2) Review of Joint Exhibit List; (3) Determine Exchange of Actual Trial Exhibits excluding rebuttal or impeachment exhibits and order that documents not exchanged are excluded; (4) For jury trials, determine readiness of Jury Instructions and Special Verdict Forms for submission to the jury and review areas of dispute; (5) Rule on Motions in Limine; (6) Completion of Trial Books. If the parties have not complied, further FSC dates may be set and/or monetary and/or evidentiary sanctions for a failure to comply may be issued.
Note 7: Day of Trial documents. The original deposition transcripts and the original and five (5) copies of the “Evidence Binders” are to be delivered to the court on the date of trial. The parties should have had the original of these binders ready for inspection by the court on the date of the FSC and should have made the necessary copies in the period between the FSC and trial.
Sanctions. Failure to comply with a material provision of this order may subject a party (represented or self-represented) or an attorney to sanctions, including striking pleadings, or precluding the introduction of evidence or contesting issues at trial. Failure to comply with time deadlines may result in continuance of trial.

IT IS SO ORDERED:

______________________
Frederick C. Shaller, Judge

Case Number: BC628388    Hearing Date: January 25, 2017    Dept: 98

MICHAEL MCCABE,
Plaintiff,
vs.

ISABELLA GUTIERREZ, et al.,

Defendants.

CASE NO: BC628388

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Dept. 98
1:30 p.m.
January 25, 2017

On July 27, 2016, Plaintiff Michael McCabe (“Plaintiff”) filed this action against Defendant Isabella Gutierrez (“Defendant”) for alleged damages arising out of a December 29, 2014 vehicle collision. On October 12, 2016, Plaintiff filed his operative First Amended Complaint (“FAC”) alleging a single cause of action for motor vehicle negligence and a request for punitive damages. Defendant now moves to strike Plaintiff’s prayer for punitive damages.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Cal. Code of Civ. Proc. § 435(b)(1). The court may, upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., §§ 436(a)-(b).

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294(a). “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. § 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. § 3294(c)(2). “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [citation].” Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.

Plaintiff alleges that Defendant became highly intoxicated knowing that she would operate a motor vehicle, knowingly and willfully drove her vehicle at a high rate of speed, and crashed into the rear of another vehicle. After exchanging her information, Defendant allegedly re-entered her vehicle and began to drive again at a high rate of speed, veered off of the road and hit a fire hydrant, and crossed over a double yellow line in the road into oncoming traffic, crashing head on into Plaintiff’s vehicle.

The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated in certain circumstances. Taylor v. Superior Court (1979) 24 Cal.3d 890, 892. In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the court reversed the trial court’s order striking the plaintiffs’ allegations in support of punitive damages. The plaintiffs had alleged that the defendant operated a motor vehicle while intoxicated and failed to stop at a stop sign, zigzagged in and out of traffic, and drove at a speed in excess of 65 miles per hour in a designated 35 mile per hour zone. Id., at 86. The court concluded that the trial court “could only exercise its discretion in one way in ruling on the motion to strike-by denying the motion.” Id., at 91.

Defendant contends that there are no facts that suggest that this is anything other than an ordinary intoxicated driving incident. However, Plaintiff has not only alleged that Defendant was intoxicated, but that she crashed into another vehicle and a fire hydrant, drove at a high rate of speed, and crossed over a double yellow line and into oncoming traffic before hitting Plaintiff’s vehicle head-on. The Court finds that these alleged facts are sufficient to support Plaintiff’s claim for punitive damages.

In light of the foregoing, Defendant’s Motion to Strike is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of January, 2017


Hon. Holly J. Fujie
Judge of the Superior Court

Case Number: BC628896    Hearing Date: January 23, 2017    Dept: 34

SUBJECT: Demurrer to first amended complaint; motion to strike

Moving Party: Defendant Carmen Santa Maria

Resp. Party: Plaintiffs James Smyth and Awesome Audio



Defendant’s demurrer is SUSTAINED. Because the demurrer is sustained, the motion to strike is MOOT.


BACKGROUND:

Plaintiffs commenced this action on 8/17/16. Plaintiffs filed a first amended complaint on 10/11/16 against defendants for: (1) specific performance; (2) breach of contract; (3) fraud; (4) interference with contractual relations; (5) negligence; (6) cancellation of instrument; (7) conspiracy; (8) declaratory relief; and (9) quiet title. Plaintiffs allege that they are tenants at the subject property pursuant to leases with Berman which provide that plaintiffs have the right of first refusal to purchase the property. (FAC ¶¶ 10-11.) In April 2016 plaintiffs learned that Berman had hired defendant Bawden, a real estate agent, to sell the property, but plaintiffs were not given notice by Berman to allow them to exercise their right of first refusal. (Id., ¶ 12.) Smyth asked Bawden if he would be willing to help Smyth secure a loan so that he could purchase the property, and Bawden agreed. (Id., ¶¶ 12, 13.) In June 2016, plaintiffs hired their own real estate agent and submitted a written offer, with approval of independent financing, to purchase the property to Bawden. (Id., ¶ 14.) The offer was explicitly submitted subject to plaintiffs’ right of first refusal. (Ibid.) This offer was ignored by Berman and Bawden. (Ibid.) In June 2016, Smyth became aware that Bawden had another client, defendant Santa Maria, who was interested in the property. (Id., ¶ 15.) Plaintiffs allege that Santa Maria was informed of plaintiffs’ right of first refusal and intention to purchase the property. (Ibid.) In a later conversation, Santa Maria informed plaintiff that he had submitted an offer to purchase the property for $625,000.00. (Ibid.) When plaintiff informed Santa Maria that plaintiff had submitted an offer under the right of first refusal, Santa Maria said it was too late. (Ibid.) Defendants refused to provide plaintiff with a copy of Santa Maria’s offer, which was necessary for plaintiff to exercise his right of first refusal. (Id., ¶¶ 15, 16.) On 7/12/16, Berman and her attorney represented that the property was no longer for sale, Santa Maria had cancelled his offer, and she would proceed with selling the property to plaintiffs. (Id., ¶ 18.) Then on 7/27/16, plaintiffs learned that Santa Maria did not cancel his offer as represented by Berman and Bawden. (Id., ¶ 20.) Plaintiffs believed the offer was not valid because it was barely legible, incomplete, and did not attach a copy of the promissory carry-back note. (Ibid.) Plaintiffs allege that Berman had no intention of selling the property to Smyth. (Id., ¶¶ 22, 23.) Plaintiffs allege that Santa Maria’s offer is not the best offer, and Berman refuses to sell to plaintiff despite his offer being the best offer. (Id., ¶¶ 24, 25.)


ANALYSIS:

Defendant demurs to the fourth, sixth, seventh, eighth, and ninth causes of action, which are the only causes of action asserted against Santa Maria, on the ground of failure to allege sufficient facts.

All of plaintiffs’ claims against Santa Maria appear to be based on the allegations that Smyth had a right of first refusal to purchase the property from Berman, defendants were aware of this right, and defendant acted to refuse this right. (See, e.g., FAC ¶¶ 11, 15, 17, 20-29, 51, 55, 61-66, 68-69, 74-77, 80.) Plaintiffs allege that the right of first refusal is pursuant to the leases with Berman. (See id., ¶ 11.) The most recent lease began on 12/15/11 and was to end on 12/15/12. (See id., Exh. A, § 3.) The lease included an option to extend the lease for an additional three years – or until 12/15/15 – and plaintiff alleges that the parties exercised this option. (See id., ¶¶ 10, 11, Exh. A, § 5.) The lease includes a holdover provision providing that if plaintiffs remained in possession after the expiration of the lease, the tenancy will be from month to month. (Id., Exh. A, § 19.) Defendant’s alleged misconduct occurred in 2016. (See id., ¶¶ 15-20.)

Defendant argues that, by the time defendant attempted to purchase the property in 2016, plaintiffs no longer had a right of first refusal because the lease had expired in December 2015. Defendant relies on Spaulding v. Yovino-Young (1947) 30 Cal.2d 138, which involved an action for specific performance of an option to purchase contained in a written lease of real property. (Id. at p. 139.) The defendants (lessors) and the plaintiffs (lessees) had executed a two-year written lease which expired on 3/6/43. (Id. at p. 140.) The lease contained a purchase option and a holdover provision. (Ibid.) After the expiration of the lease term, the plaintiffs continued in possession of the property and continued to pay the monthly rent under the holdover provision. (Ibid.) On 10/7/43, the plaintiffs first expressed an election to exercise the purchase option. (Id. at p. 141.) The defendants rejected this offer on the ground that the time within which the option could be exercised had ended with the expiration of the lease. (Ibid.) The plaintiffs then brought an action for specific performance and argued that the holdover provision allowing for month-to-month tenancy after the expiration of the lease operated to extend the purchase option. (Id. at pp. 139, 141.) The court rejected this argument.

“It is uniformly held that the general consideration of the lease, such as the covenant to pay rent or do other acts, supports the option to purchase as well as the right to occupy the premises. [Citations.] But it does not follow that all such rights and obligations exist beyond the fixed term of the lease. Here the fixed term created by the lease was specified as two years, and the lessor-lessee relationship as such terminated at the expiration of that period. The continued occupancy of the property thereafter by plaintiffs was regulated by the ‘hold-over’ provision of the lease, which provision contemplated a landlord-tenant relationship as distinguished from the lessor-lessee relationship as such. The provision in the ‘hold-over’ clause that the month-to-month tenancy was to be ‘on the same terms and conditions' as stated in the lease does not avail plaintiffs, for continued occupancy of the property on that basis by the former lessees was no more than the law would imply in the absence of such ‘hold-over’ clause. [Citations.] Upon the expiration of the two-year lease period, plaintiffs were no longer bound to hold the premises and pay rent for a definite term in exchange for the right of occupancy and the option to purchase the property, which option was expressly [defined] as ‘part of the consideration for this lease.’ [Citation.] In the absence of the continuance of such mutuality of obligation between the parties, there would be no legal basis for carrying over the option agreement into the indefinite month-to-month tenancy permitted under the ‘hold-over’ clause, apparently inserted in the lease for plaintiffs' protection from an unlawful detainer action. [Citation.] The express statement in the lease making the availability of the option dependent upon the condition that ‘Lessees shall have paid all of the rental due up to the time of the exercise of said option,’ when considered in conjunction with the express provision in the lease for the agreed ‘term of two years' at the total ‘rental of $840.00,’ serves to correlate the life of the option with the fixed term of the lease. In these circumstances, plaintiffs' rights as lessees during the fixed term must be distinguished from their subsequent rights as month-to-month tenants under the ‘hold-over’ clause.” (Id. at pp. 141-142.)

The court further noted:

“[T]he parties here have executed a formal document setting forth their understanding as to the demise of the property and the separate right of the option to purchase conferred on the lessees ‘as part of the consideration for this lease.’ As so stipulated, the option is not ‘unlimited in time’ but must be regarded as available only during the effective period of the consideration for the lease two years in correlation with occupancy of the property under the lessor-lessee relationship. [Citation.] In the light of these observations the ‘hold-over’ clause must reasonably be construed as operating to permit the former lessees to continue tenancy of the property ‘on the same terms and conditions' stated in the lease, but not to permit exercise of the option after the fixed period specified in the lease. While a lessor may be content for a fixed time to be restricted to a fixed price for the sale of his property, it is another matter altogether to conclude that an option to purchase is to continue for an indefinite period under authority of a ‘hold-over’ tenancy unless clear words are used to express that purpose. Such is not the case here, where the words of the ‘hold-over’ provision are appropriate to a continuance of the tenancy but not to a continuance of the option. Accordingly, plaintiffs' attempt to exercise the option to purchase agreement seven months after the expiration of the lease, and while ‘holding-over’ the property, came too late, and the trial court correctly so concluded.” (Id. at pp. 143-144.)

Plaintiffs take issue with the fact that Spaulding concerned a purchase option and not a right of first refusal. However, plaintiffs provide no California authority suggesting that the analysis should be different for a right of first refusal, or which otherwise suggests that a right of first refusal may continue pursuant to a holdover clause.

One prominent California treatise has noted that the right of first refusal may expire to the same extent as a purchase option:

“As in the case of a purchase option, the right of first refusal in a lease is dependent on the continued enforceability of the lease. If the lease expires or is terminated because of the tenant's breach, the tenant's preemptive right contained in the lease also terminates. [Fn. omitted.] When the lease is properly extended, the preemptive right continues during the extended term, [fn. omitted] but if the lease is not extended, the tenant who remains in possession after the term of the lease expires is merely a tenant at sufferance and cannot exercise the right, even though the landlord elects to sell the property.[Fn. omitted.]” (10 Miller & Starr, Cal. Real Estate (4th. ed. 2016) § 34:118.)

Plaintiffs fail to allege facts suggesting that the terms of the lease extended beyond the date of expiration, that plaintiffs were anything more than holdover tenants at the time of the alleged misconduct, or that Berman otherwise expressly or impliedly agreed that the right of first refusal would continue following the expiration of the lease. Thus, plaintiffs fail to allege facts to support their assertions that they had a right to first refusal which was violated by the defendants.

Accordingly, defendant’s demurrer is SUSTAINED, with leave to amend. Because the demurrer is sustained, defendant’s motion to strike is MOOT.

Case Number: BC628900    Hearing Date: January 23, 2017    Dept: 53

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEPARTMENT 53


ALLEN YADEGAR;

Plaintiff,


vs.


WILLIAM KELLY JR., et al.;

Defendants.
Case No.: BC628900

Hearing Date: January 23, 2017


Time: 8:30 a.m.


[TENTATIVE] ORDER RE:

DEFENDANTS TAIMOOR BIDARI, AND YOUSSEF MIKHAIL AKA JOE MIKHAIL’S (1) DEMURRER TO COMPLAINT AND (2) MOTION TO STRIKE PORTIONS OF COMPLAINT


Defendants TAIMOOR BIDARI and YOUSSEF MIKHAIL AKA JOE MIKHAIL’S demurrer is SUSTAINED WITH LEAVE TO AMEND.

Defendants TAIMOOR BIDARI and YOUSSEF MIKHAIL AKA JOE MIKHAIL’S motion to strike is MOOT.

Plaintiff ALLEN YADEGAR is ordered to file a First Amended Complaint within 20 days of notice of this order.

BACKGROUND

Plaintiff Allen Yadegar (“Plaintiff”) filed this action on August 17, 2016 against Defendants William Kelly Jr. (“Kelly”), Malibu Outrigger Homeowners Association (“MOHA”), Taimoor Bidari (“Bidari”), and Youssef Mikhail aka Joe Mikhail (“Mikhail”) (collectively “Defendants”).

The gravamen of the Complaint is that Kelly, the manager of the condominium facility where Plaintiff resides and an agent of MOHA, unlawfully entered Plaintiff’s residence by employing a locksmith to open the condominium door. Plaintiff alleges that Kelly’s entry into Plaintiff’s condominium was done “with the conspiracy and participation of Bidari and Mikhail.” (Complaint ¶16.) The Complaint asserts causes of action against Defendants for (1) trespass; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress.

Bidari and Mikhail now demur to the Complaint in its entirety on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. Bidari and Mikhail also move to strike portions of the Complaint.

DEMURRER

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

B. First Cause of Action – Trespass

“The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” (Civic W. Corp. v. Zila Indus., Inc. (1977) 66 Cal.App.3d 1, 16.) Here, although the Complaint alleges that Kelly unlawfully entered Plaintiff’s condominium, there is no allegation that Bidari or Mikhail unlawfully entered the condominium. The only relevant allegations relating to Bidari or Mikhail are the conclusory allegations that “the break-in by Kelly was in a plan and conspiracy with [Bidari and Mikhail]” and that Kelly entered the condominium “with the conspiracy and participation of Bidari and Mikail.” (Complaint ¶¶ 12, 16.)

“Civil conspiracy is not an independent tort. Rather, it is a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823 (internal citations and quotations omitted).) “It is a general and well-settled principle of law that, where two or more persons are sued for a civil wrong, it is the civil wrong resulting in damage, and not the conspiracy, which constitutes the cause of action.” (Mox, Inc., v. Woods (1927) 202 Cal. 675, 677.)

“[I]n order to state a cause of action based upon a conspiracy theory the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient.” (State ex rel. Metz v. CCC Info. Servs., Inc. (2007) 149 Cal.App.4th 402, 419 (internal citations omitted).)

Here, Plaintiff has not pleaded any facts related to the formation and operation of a conspiracy between Bidari, Mikhail, and Kelly. There are no factual allegations demonstrating that these defendants made any agreement to do anything. Plaintiff’s allegations related to a prior attack on his fiancée Ahang Mirshojae appear to be wholly irrelevant as there are no facts alleged connecting this prior attack to Kelly’s alleged trespass. Accordingly, the Complaint fails to state a cause of action for trespass against Bidari and Mikhail.

C. Second Cause of Action – Intentional Infliction of Emotional Distress

To prevail on an IIED claim, plaintiff must prove: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050). “[L]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, but only to conduct so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng'g, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.)

Here, Plaintiff’s IIED claim appears to be premised on the underlying trespass claim. Thus, Plaintiff is again relying on a conspiracy theory of liability against Bidari and Mikhail. For the reasons discussed above, Plaintiff has failed to state any cause of action based upon a conspiracy theory. Moreover, as alleged, the Complaint does not sufficiently allege extreme and outrageous conduct to support an IIED claim.

D. Third Cause of Action – Negligent Infliction of Emotional Distress

NIED is not an independent tort but the tort of negligence. (Macy’s California, Inc. v. Sup. Ct. (1995) 41 Cal.App.4th 744, 748.) “The traditional elements of duty, breach of duty, causation, and damages apply.” (Id.) “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

Here, Plaintiff’s NIED claim is again premised on the underlying trespass claim and relies on allegations of a conspiracy between Kelly, Bidari and Mikhail. As discussed above, the allegations are insufficient to support liability based on a conspiracy theory. Additionally, the Court is unaware of any authority recognizing a claim for conspiracy to commit negligence. This cause of action also fails because there is no allegation that Plaintiff’s emotional distress was caused by the breach of any legal duty owed to Plaintiff.

E. Conclusion

For the foregoing reasons, the demurrer is sustained in its entirety with leave to amend. The motion to strike is moot.

Bidari and Mikhail are ordered to provide notice of this ruling.


DATED: January 23, 2017
_____________________________
Howard L. Halm
Judge of the Superior Court

Case Number: BC629522    Hearing Date: January 23, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

MICHAEL NEVIEUS;

Plaintiff,

vs.

FORD MOTOR COMPANY, et al.;

Defendants. Case No.: BC 629522

Hearing Date: January 23, 2017


[TENTATIVE] RULING RE:

DEFENDANT FORD MOTOR COMPANY’S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT.


Defendant Ford Motor Company’s and Galpin Motors, Inc.’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED, except as to the Third Cause of Action for violation of the CLRA as against Galpin, as to which the Demurrer is SUSTAINED with 35 days leave to amend.

Defendant Ford Motor Company’s Motion to Strike the Prayer for Punitive Damages is GRANTED without leave to amend.

FACTUAL BACKGROUND

This is a Lemon Law case. The Complaint alleges as follows. Plaintiff Michael Nevieus (“Nevieus”) purchased a new 2011 Ford Mustang (the “Mustang”) on November 1, 2010. (First Amended Complaint (“FAC”) ¶¶ 6–8.) Nevieus received written warranties with the Mustang. (Id. ¶ 9.) Nevieus purchased the vehicle from defendant Galpin Ford (“Galpin”).

The Mustang was equipped with Takata PSDI-4 driver side airbag inflators. (FAC ¶ 6.) On July 1, 2015, Nevieus received safety recall No. 15S21, calling for the replacement of the driver side air bag inflator. (FAC ¶ 11.) Nevieus thereafter delivered the Mustang to Ford’s authorized service and repair facilities. (Id. ¶ 12.) Upon delivery, Ford represented to Nevieus that it could not conform the vehicle to the applicable warranties or repair the defects because the parts were not available. (Id. ¶ 13.) The FAC alleges that Ford returned the Mustang to Nevieus without warning him that continued operation of the vehicle may result in death or serious bodily injury. (Ibid.) The FAC alleges that Ford does not know when the parts will be available. (Ibid.)

Nevieus sent a letter to Ford requesting that his vehicle be repurchased or replaced, which Nevieus denied. (Id. ¶ 15.)



PROCEDURAL HISTORY

Nevieus filed his Complaint on August 4, 2016, alleging four causes of action:


1. Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act.
2. Breach of Express Warranty under the Song-Beverly Warranty Act.
3. Violation of The Consumers Legal Remedies Act (Civil Code Section 1750 et seq.)
4. Violation of California Business and Professions Code Section 17200 et seq.

Nevieus filed his FAC on September 30, 2016, alleging the same four causes of action.

Ford and Galpin filed their Demurrer to and Motion to Strike portions of the Complaint on November 16, 2016, along with a proper meet and confer declaration. Nevieus filed his Oppositions on January 9, 2017. Ford and Galpin filed their Replies on January 13, 2017.


DISCUSSION


I. DEMURRER
A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“‘[A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.’ [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [quoting Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374].) “In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

As a threshold matter, the court notes that Ford and Galpin argue that the part Nevieus claims is unavailable is in fact available. (Demurrer at p. 1.) Ford and Galpin also argue that the recall of the airbags on Nevieus’s vehicle “did not affect Ford vehicles.” (Demurrer at p. 3.) These are arguments based on facts outside of the complaint, and not properly the basis for a demurrer. The court will next turn to each of the other arguments made by Ford and Galpin (collectively hereinafter, Ford”)

A. THIRD CAUSE OF ACTION – CLRA
Ford first argues that the third cause of action fails because it does not allege any facts showing how, when, where, to whom, and by what means the representations that allegedly violated the CLRA were tendered by Ford or how these representations were likely to deceive a reasonable consumer. (Demurrer at pp. 5–6.)

“The Legislature enacted the CLRA in 1970 to provide individual consumers with a remedy against merchants employing certain deceptive practices in connection with the sale of goods or services, noting the difficultly consumers faced proving a fraud claim. [Citation.] The purpose of the statutory scheme is ‘to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.’ [Citation.] The Legislature intended the CLRA to be ‘liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.’ [Citation.] The CLRA sets forth 23 proscribed ‘unfair methods of competition and unfair or deceptive acts or practices.’” (Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1021.) Recent amendments to the CLRA has increased this number to 26. (Civ. Code., § 1770.) One of these deceptive business practices is: “Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.” (Civ. Code § 1770, subd. (a)(5).)

1. Pleading Issues

Ford argues that the heightened pleading standard applicable to a common law fraud cause of action is required to state a valid claim for violation of the CLRA. (Demurrer at pp. 5–6.) However, Ford cites to no case law applying the common-law fraud heightened pleading standard to a CLRA claim. As shown above, the CLRA is to be “liberally construed,” a construction at odds with the heightened pleading standards of a common law fraud claim sounding in tort.

The sole California case cited by Ford, Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361–1362 held only that subjective representations that a certain television service would have “crystal clear” and “CD quality” sound are not actionable under the CLRA as misrepresentations, while factual misrepresentations such as “50 channels” and “7 day schedule” are actionable. Consumer Advocates does not apply a heightened pleading standard to CLRA claims. To the contrary, the case involves a ruling on a motion for summary judgment rather than a demurrer. (Id. at p. 1360.)

Ford also argues that a CLRA claim requires allegations of the names of the persons making the misrepresentation to impose liability on a corporation, similar to a common-law fraud claim, citing to Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153. (Demurrer at pp. 5–6.) However, Tarmann does not involve a CLRA claim, but only common law fraud.

Ford then argues that any representations made regarding the Mustang in a sales brochure are not actionable and are mere “puffery.” (Demurrer at pp. 7–8.)

“‘A statement is considered puffery if the claim is extremely unlikely to induce consumer reliance. Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim. [Citation.] “The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions.” [Citation.] Thus, a statement that is quantifiable, that makes a claim as to the “specific or absolute characteristics of a product,” may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery. [Citation.]’ [Citation.]” (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311.)

Here, the FAC alleges that Ford represented to Nevieus that the Mustang would be in a safe condition, and that Ford would repair any defective condition pursuant to the warranty. (FAC ¶¶ 9–14.) Ford, however, was unable to repair the Mustang’s defective air bag inflator, and refused to repurchase the vehicle. Ford’s representation that it would repair or replace the Mustang was not “mere puffery,” but the type of quantifiable statement that a consumer would rely upon. While a statement that Ford would repair any defective condition pursuant to the warranty is not specific to the defective airbag, it not a subjective, general claim about the product.

Ford then argues that the FAC fails to allege that Ford knew about the defective air bag inflator when it sold the Mustang. (Demurrer at p. 8.) However, the FAC alleges that Ford sold the Mustang representing that it would repair any later-discovered defects, which it breached by acknowledging the defective airbag but failing to fix the defect or repurchase the vehicle. (FAC ¶¶ 44–45.) This is the central misrepresentation alleged in the FAC, not that Ford sold the Mustang knowing that the airbag was defective.
Ford then argues that the FAC does not allege that Ford omitted a fact it was obligated to disclose to Nevieus. (Demurrer at pp. 8–10.)

In Daugherty v. American Honda Motor Co., Inc. (“Daugherty”) (2006) 144 Cal.App.4th 824, 833–34, class-action plaintiffs alleged that Honda breached the CLRA under subdivisions (a)(5) and (7) by “‘[c]oncealing and failing to disclose’ that the 1990–1997 model year Preludes and Accords equipped with F22 engines contain a defect, and by continuing to market and sell defective cars notwithstanding knowledge of the defect. Daugherty further allege[d] Honda issued a partial product update campaign and press releases designed to and likely to mislead owners of 1990—1993 models into believing that their cars were not defective, and failed to give proper notice of the defect to 1994–1997 model year owners.”

The Court of Appeal found that these allegations did not state a cause of action under the CLRA because “[t]he complaint fails to identify any representation by Honda that its automobiles had any characteristic they do not have, or are of a standard or quality they are not. All of plaintiffs' automobiles functioned as represented throughout their warranty periods, and indeed many still have experienced no malfunction.” (Daugherty, supra, 144 Cal.App.4th at p. 834.) The court agreed that the CLRA could be violated by “concealment of the characteristics, use, benefit, or quality of the goods contrary to that represented,” but found that “in Daugherty's case, no representation was made to which the alleged concealment was contrary.” (Ibid.) “In short, although a claim may be stated under the CLRA in terms constituting fraudulent omissions, to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose. In Daugherty's case, no representation is alleged relating to the F22 engine, which functioned as warranted. Accordingly, no claim has been stated.” (Id. at p. 835.)

Here, unlike in Daugherty, the FAC alleges that Ford represented that it would perform any repairs and replacements of parts necessary to ensure that the Mustang was free from defects. (FAC ¶ 9.) However, when the airbag defect manifested itself within the warranty period, Ford failed to replace the defective unit when Nevieus brought it to be replaced. Ford also specifically represented that the Mustang would be free from defects in materials, yet Ford admits that the air bag inflator was defective and recalled it. (Complaint ¶ 9, 11–12.) The air bag inflator, unlike the defect in the Honda engine, was, as alleged, defective within the warranty period. Further, in Daugherty, there were no allegations of a breach of an express warranty. (Daugherty, supra, 144 Cal.App.4th at p. 836–847.)

The representations that Ford would repair or replace any defects discovered in the Mustang or replace the vehicle are properly alleged misrepresentations under the CLRA because the FAC alleges that Ford acknowledges that the airbags are defective, and sent a letter to Nevieus stating that the airbags needed to be replaced, but later failed to replace the airbags because it does not now have the parts, and does not know when it may have the parts to replace the airbags. (Complaint ¶¶ 11–14.)

2. Economic Loss Rule

Ford argues that the “economic loss rule” limits Nevieus’s damages to those sounding in contract alone because the damages arise out of a warranty. (Demurrer at pp. 10–11.)

“Economic loss consists of ‘“‘“damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits—without any claim of personal injury or damages to other property . . . .”'” [Citation.]’ [Citation.] Simply stated, the economic loss rule provides: ‘“‘[W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only “economic” losses.’” This doctrine hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.’ [Citation.] The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. [Citation.] Quite simply, the economic loss rule “prevent[s] the law of contract and the law of tort from dissolving one into the other.” (Robinson Helicopter Co., Inc. v. Dana Corp. (“Robinson”) (2004) 34 Cal.4th 979, 988.) However, the economic loss rule does not bar fraud and intentional misrepresentation claims because they are independent of a contract claim stemming from a warranty. (Id. 991.)

The court in Robinson held that but for the fraudulent concealment of the use of faulty clutches in a helicopter, the plaintiff “would not have accepted delivery and used the nonconforming clutches over the course of several years, nor would it have incurred the cost of investigating the cause of the faulty clutches. Accordingly, Dana's tortious conduct was separate from the breach itself, which involved Dana's provision of the nonconforming clutches. In addition, Dana's provision of faulty clutches exposed Robinson to liability for personal damages if a helicopter crashed and to disciplinary action by the FAA. Thus, Dana's fraud is a tort independent of the breach.” (Robinson, supra, 34 Cal.4th at p. 991.)

The economic loss rule bars a plaintiff with a remedy in contract from “converting” that cause of action into a tort. The CLRA, however, is not a tort cause of action, but a statutory remedy. Ford cites to no cases where the economic loss rule precludes a plaintiff from seeking a statutory remedy.

Ford argues that because the CLRA involves a “misrepresentation,” damages under it are “tort damages,” and are therefore barred under the economic loss rule. (Reply at pp. 4–6.) Again, Ford cites to no case law holding that the CLRA is a “tort” under the economic loss rule. Were this court to adopt Ford’s construction of the economic loss rule, no party could bring a CLRA claim where a warranty existed. That interpretation is not consistent with the “liberal construction” of CLRA claims.

3. 30-Day Notice

Ford argues that Nevieus failed properly to provide it with notice 30 days before filing this cause of action and demanding that the goods in question be repaired, replaced, or otherwise corrected. (Demurrer at pp. 11–12.)

“Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following: (1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770. (2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.” (Civ. Code, § 1782, subd. (a).)

An action for injunctive relief need not comply with the 30-day notice, and a consumer may amend a complaint for injunctive relief to include a request for damages not less than 30 days after the commencement of an action and after complying with the 30-day notice above. (Civ. Code, § 1782, subd. (d).)

Nevieus has produced with its Opposition its August 17, 2016 letter to Ford and Ford’s September 21, 2016 denial of the demand. (Barry Decl. Exs. 2, 3.)

Ford argues that these letters are insufficient to comply with the CLRA because the Complaint was filed on August 4, 2016, before the letters were sent, and because defendant Galpin has not been served with the letter. (Reply at pp. 3–4.)

It is undisputed that the Complaint was filed prior to Nevieus providing notice under the CLRA. However, the operative FAC was filed on September 30, 2016, more than 30 days after Nevieus notified Ford properly under the CLRA.

Ford cites to no case law supporting its argument that a failure to properly comply with the CLRA notice requirements at the onset of the lawsuit prevents a plaintiff from ever properly complying by sending notice and amending the complaint. The court finds that it would not be a reasonable interpretation of the statute to find that once a complaint is filed, the defect of lack of advance notice cannot be cured.

Rather, the court finds that a more reasonable interpretation is that once Nevieus gave 30-days’ advance notice to Ford, then Ford had an opportunity to cure and avoid liability. As Civil Code section 1782, subdivision (b) provides: Except as provided in subdivision (c), no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.” Thus, Ford could have cured the alleged violation prior to the filing of the First Amended Complaint, but as alleged, it did not.

Regarding Nevieus’ failure to serve the notice on Galpin, the court finds that this defect is properly raised, and the court sustains the demurrer as to Galpin, with leave to amend. The court will allow 35 days leave to amend so that Nevieus can properly give notice to Galpin, and amend the complaint accordingly.

The Demurrer to the Third Cause of Action is OVERRULED as to Ford and SUSTAINED as to Galpin, with leave to amend.

B. FOURTH CAUSE OF ACTION – UCL

California Business and Professions Code section 17200 et seq (the “UCL”) creates “‘three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.’ [Citation.]” (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 520.) The UCL's unlawful prong “borrows” violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable. (Id.)

In order to have standing to bring a UCL claim, a plaintiff must show that he or she has “suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof. Code, § 17204.)

Ford first argues that the FAC fails to meet the heightened pleading standard for UCL claims, arguing that because the UCL has a “fraud” component, it also has a heightened pleading standard. (Demurrer at pp. 13–14.) As discussed in further detail above in relation to the CLRA claim, Ford has failed to cite to any case law holding that UCL claims have a heightened pleading standard.

Ford then argues that the Complaint fails to state any unlawful business practice. (Demurrer at pp. 13–15.) However, as shown above, the complaint properly alleges violation of the CLRA. Court have held that “[o]ur conclusion that the complaint states a CLRA violation means the complaint states a UCL violation as well, under the UCL's ‘unlawful’ prong.” (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 258.)

Ford then argues that the Complaint fails to allege an injury in fact. (Reply at p. 6–9.) Although fully articulated for the first time on Reply, the FAC properly alleges that Nevieus has been injured by Ford’s actions because had Ford not misrepresented its warranty regarding the repair of later discovered defects, Nevieus would not have purchased the Mustang, which was valued at over $32,000. (FAC ¶¶ 7, 53, 54.)

This is a proper allegation of injury in fact.

The Demurrer to the Fourth Cause of Action is OVERRULED.

II. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (CRC 329).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Ford and Galpin move to strike the prayer for punitive damages. (Motion to Strike Notice at p. 2.) In his Opposition, Nevieus does not state the basis for the prayer for punitive damages, other than stating that “[t]he right to seek punitive damages as a component of recoverable damages necessarily flows from the allegations already contained within the [FAC],” specifically, the CLRA claim. (Opposition at pp. 1–2.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:
1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Additionally, section 3294, subdivision (b) provides that an employer is not liable based on the acts of an employee “unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” In addition, “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Code Civ. Proc., § 3294, subd. (b).)

Here, the FAC fails to allege facts sufficient to hold Ford and Galpin liable for the actions of any of their employees. The Motion to Strike the Prayer for Punitive Damages is GRANTED. Because Nevieus does not argue a basis for alleging punitive damages, the motion is granted without leave to amend.

Defendant to give notice.


DATED: January 23, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

Case Number: BC629671    Hearing Date: January 23, 2017    Dept: 34

SUBJECT: Demurrer to complaint

Moving Party: Defendants Frances Tseng, Sidney Wang, and T & S Yakitori House

Resp. Party: Plaintiff Tomohiro Sakata

Defendants’ demurrer to plaintiff’s complaint is OVERRULED.
:
Defendant’s Request for Judicial Notice is GRANTED. (See Evid. Code, § 452(c), (h).)


BACKGROUND:

Plaintiff commenced this action on 8/5/16 against defendants for: (1) breach of contract; (2) breach of fiduciary duty; (3) unjust enrichment; and (4) dissolution and accounting. From 1984 to 2014, plaintiff was the sole owner of a restaurant called Kokekkoko. (Compl., ¶ 7.) In 2014, Sakata was approached by Tseng and Wang who were interested in purchasing a majority share of the restaurant. (Ibid.) The parties agreed that Tseng would own 75% of the restaurant and plaintiff would own 25%. (Ibid.) In 2014, Tseng and Wang formed T & S Yakitori House, of which Tseng and Wang were directors and officers. (Ibid.) In February 2015, T & S, Tseng, and plaintiff entered into a written consulting agreement which provided that Tseng owned 75% of T & S and plaintiff owned 25%; Tseng and T & S agreed to pay plaintiff $360,000.00 in exchange for 75% interest in the business, which was characterized as a consulting fee; and Tseng and T & S agreed to reimburse plaintiff for additional travel expenses. (Id., ¶ 8.) Plaintiff alleges that at all times Tseng was acting as a strawman for Wang, who made all decisions with respect to T & S. (Id., ¶ 9.) Plaintiff alleges that defendants refused to provide a copy of the consulting agreement, and defendants are estopped from denying its existence. (Ibid.) In December 2015 plaintiff discovered that defendants sold all of the assets of T & S to a third party without notifying plaintiff. (Id., ¶ 10.) Defendants have failed and refused to pay any portion of the sales proceeds to plaintiff. (Ibid.) Plaintiff alleges that defendants defaulted on the agreed upon payments and failed to reimburse travel expenses. (Id., ¶ 14.)

ANALYSIS:

Defendants demur to the entire complaint and the four causes of action therein on the grounds of failure to allege facts and uncertainty.

Uncertainty

Defendants argue that the complaint is uncertain. Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2015) ¶ 7:85.) "Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond–i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her." (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

Here, the complaint is not so uncertain that defendants cannot reasonably respond. To the extent that defendants wish to learn more about plaintiff’s claims, they should do so during the discovery process.


First cause of action

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Plaintiff sufficiently alleges these elements, and alleges that all defendants are liable under the alleged agreement. (See Compl., ¶¶ 6-10, 13-15.)

Defendants argue that the allegations in the complaint suggest that there was no acceptance or agreement. This is not well taken. At most, paragraph 9 of the complaint suggests that defendants attempted to deny the existence of the agreement after it was entered into and after plaintiff’s performance thereon. (See Compl., ¶ 9.) Defendants’ assertions and denials do not establish that there was no agreement. To the extent that defendants have evidence that they did not accept the agreement, such evidence should be produced during trial or a motion for summary judgment.

Accordingly, defendants’ demurrer to the first cause of action is OVERRULED.


Second and third causes of action

According to the complaint, the second and third causes of action are derivative claims. (See Compl., pp. 4-5.) Defendants argue that the second and third causes of action fail because plaintiff fails to allege a pre-lawsuit demand to the board pursuant to Corporations Code section 800. Among other things, the second and third causes of action appear to assert violations of Corporations Code sections 500 and 501 by alleging that defendants sold assets of T & S and transferred the proceeds of the sale solely to themselves. (See Compl., ¶¶ 19, 23.) Derivative claims for violations of sections 500 through 503 may be brought against any liable directors “without regard to the provisions of Section 800.” (Corp. Code, § 316(c).) Therefore, the second and third causes of action sufficiently allege a claim and defendants’ argument is not well taken. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2016) ¶ 7:42.2 [demurrer should be overruled so long as there are sufficient allegations to entitle plaintiff to relief].)

Defendants also argue that the third cause of action fails because there is no recognized cause of action for unjust enrichment. The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” (Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448.) “Unjust enrichment is ‘a general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself.” (Melchior v. New Line Cinema (2003) 106 Cal.App.4th 779, 793 [quoting Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315].) Moreover, an unjust enrichment claim is inapplicable where the parties have enforceable express contracts defining the parties’ rights. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 [citing California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 172]; see also Klein v. Chevron U.S.A., Inc. (2012) 202 Cal. App. 4th 1342, 1388.)

Here, plaintiff has alleged the existence of an express contract between the parties. However, the Court will nonetheless allow plaintiff to seek a remedy for unjust enrichment in the event that the alleged contract is found to be unenforceable. Plaintiff has alleged sufficient facts to support a claim for unjust enrichment. (See Compl., ¶¶ 7-10, 23; Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [“The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’ [Citation.]”].)

Accordingly, defendants’ demurrer to the second and third causes of action is OVERRULED.


Fourth cause of action

Defendants argue that the fourth cause of action fails because, other than in a close corporation, only a shareholder owning at least one-third of the shares of a corporation can seek involuntary dissolution, and plaintiff alleges that he owns only 25% of the shares. (See Compl., ¶8.) Defendants rely on Corporations Code section 1800, which provides that an action for involuntary dissolution may be brought by, among others:

A shareholder or shareholders who hold shares representing not less than 331/3 percent of (i) the total number of outstanding shares (assuming conversion of any preferred shares convertible into common shares) or (ii) the outstanding common shares or (iii) the equity of the corporation, exclusive in each case of shares owned by persons who have personally participated in any of the transactions enumerated in paragraph (4) of subdivision (b), or any shareholder or shareholders of a close corporation.

(Corp. Code, § 1800(a)(2).) Thus, the suit may be brought by shareholders holding at least one-third of the total number of outstanding shares, excluding shares held by persons who personally participated in the fraud or mismanagement which serves the basis for the dissolution claim. (See Corp. Code, § 1800(a)(2), (b)(4); Friedman, et al., Cal. Prac. Guide: Corps. (The Rutter Group 2016) ¶ 8:813.)

Here, plaintiff alleges that Tseng owned 75% of T & S and plaintiff owned 25%. (Compl., ¶ 8.) Plaintiff also alleges that Tseng, along with the other defendants, participated in the fraud or mismanagement of T & S. (See id., ¶¶ 9-10, 26.) These allegations are sufficient, at the pleadings stage, to suggest that Tseng’s shares should be excluded and therefore plaintiff may bring an action for involuntary dissolution.

Accordingly, defendants’ demurrer to the fourth cause of action is OVERRULED.

Case Number: BC629955    Hearing Date: January 20, 2017    Dept: 92

JOAN BIGGS,
Plaintiff(s),

vs.

LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, ET AL.,

Defendant(s).

CASE NO: BC629955

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE WITHOUT LEAVE TO AMEND

Plaintiff, Joan Biggs filed this action against Defendant, Los Angeles County Metropolitan Transportation Authority (“LACMTA”) for damages arising out of a bus accident. Plaintiff’s complaint includes a sole cause of action for motor vehicle negligence, and seeks to hold Defendant liable for (a) operation of a motor vehicle, (b) employment of persons (c) operating the vehicle, (d) ownership of the vehicle, (e) entrustment of the vehicle, and (f) “other reasons.”

At this time, LACMTA seeks to strike the allegations concerning entrustment of the vehicle and “other reasons.” LACMTA argues it cannot be held liable for negligent entrustment. It argues there are no allegations to support imposition of liability for “other reasons.” Finally, it contends nothing concerning negligent entrustment or other reasons was pled in the government tort claim, and therefore it cannot be pleaded at the complaint stage.

As an initial note, Plaintiff filed her opposition to the motion under case number BC609709, which caused great confusion in connection with the motion. The Court requests that all future documents be filed in the correct case number to avoid confusion and continuances.

LACMTA’s primary argument is that all liability against a public entity must be grounded in statute, and there is no statutory authority supporting a claim for negligent entrustment. Gov Code §815(a) makes clear that all liability against a public entity must be grounded in statute. MTA cites deVillers v. City of San Diego (2007) 156 Cal.App.4th 238, 252-53 and Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1110-15 to support its position that it cannot be held liable for negligent entrustment, as the cause of action lacks a statutory basis.

Both deVillers and Munoz considered the issue of whether a public entity can be held liable for negligent hiring, training, retention, and/or supervision. The cases hold that the public entity can be vicariously liable for its employee’s negligent acts, but cannot be directly liable for its own negligence in hiring, training, retaining, and/or supervising the employee, as there is no statutory authority for such liability. MTA argues the same logic applies to a claim for negligent entrustment, and therefore the claim for negligent entrustment fails against it as a public entity.

Plaintiff, in opposition, argues that public entities are liable, per Gov Code §815.2, for the acts of their employees, and therefore §815.2 provides the statutory basis for liability at issue here. §815.2, however, would provide for liability based on employment of the person who operated the motor vehicle and/or ownership of the subject vehicle; Defendant does not move to strike the allegations concerning either of these relationships. It moves to strike only the allegations concerning negligent entrustment, which are separate and apart from allegations concerning vicarious liability. Plaintiff failed to show that a claim for negligent entrustment against a public entity is grounded in statute, and therefore the motion to strike ¶MV-2(e) is granted. Because this is a purely legal issue, leave to amend is denied. The Court declines to rule on whether Plaintiff’s government tort claim is sufficient to support her claim for negligent entrustment, as doing so is not necessarily to resolution of the merits of the motion; the Court does, however, note that Plaintiff did not address this issue in opposition.

LACMTA also argues that the allegations concerning “other reasons for liability” should be stricken. Plaintiff does not address this argument in opposition. The Court agrees with LACMTA; unless Plaintiff can state specific other reasons for liability in her complaint, this allegation is irrelevant and improper. The motion to strike ¶MV-2(f) is therefore also granted without leave to amend.

LACMTA is ordered to file an answer to the complaint, with ¶¶MV-2(e) and (f) deemed stricken, within ten days.

Case Number: BC629958    Hearing Date: January 25, 2017    Dept: 91

DEPARTMENT 91 OF THE PERSONAL INJURY (PI) COURT HAS DETERMINED THAT THE ABOVE ENTITLED ACTION IS COMPLICATED BASED UPON EITHER THE NUMBER OF PRETRIAL HEARINGS OR THE COMPLEXITY OF THE ISSUES PRESENTED.

AT THE DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY TRANSFERRED FOR ALL PURPOSES TO JUDGE M. BERNAL IN DEPT. F OF THE SOUTHEAST DISTRICT, NORWALK. ANY PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT.

PLAINTIFF SHALL GIVE NOTICE OF THE TRANSFER ORDER.

Case Number: BC630126    Hearing Date: January 20, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

LIAM PATRICK;

Plaintiff,

vs.

DEL FRISCO’S GRILLE OF PASADENA, LLC, et al.;

Defendants. Case No.: BC 630126

Hearing Date: January 20, 2017


[TENTATIVE] RULING RE:

DEFENDANTS’ MOTION TO COMPEL ARBITRATION.

Defendants’ Motion to Compel Arbitration is GRANTED. This case is stayed pending completion of the arbitration. The case is set for a Status Hearing re Arbitration for July __, 2017, at 8:30 a.m.

FACTUAL BACKGROUND

This is a discrimination case. The Complaint alleges that Plaintiff Liam Patrick (“Patrick”) began working for defendants Del Frisco’s Grille of Pasadena, LLC, Del Frisco’s Grille of California, Inc., and Del Frisco’s Restaurant Group, Inc. (collectively, “Del Frisco’s”) on November 23, 2014 as a server. (Complaint ¶ 17.) Patrick alleges that his supervisors Angel Flores (“Flores”) and Shara Nagelberg (“Nagelberg”) harassed him on the basis that they perceived him to be Muslim and Middle Eastern of Punjabi descent based on the color of his skin, despite Patrick being from the Caribbean and not being Muslim. (Complaint ¶¶ 18–21.)

Patrick complained about the harassment on January 26, 2016. (Complaint ¶ 23.) Patrick also complained about Nagelberg’s repeated “comping” of items off customer’s bills after they had paid and pocketing the difference. (Complaint ¶ 24.)

On February 7, 2016, Flores and Nagelberg falsely accused Patrick of professing a desire to kill Nagelberg. (Complaint ¶ 26.) Del Frisco’s then fired Patrick. (Complaint ¶ 28.)

PROCEDURAL HISTORY

Patrick filed his Complaint on August 12, 2016, alleging seventeen causes of action:

1. Discrimination Based on Perceived Religion
2. Discrimination Based on Actual and Perceived Race, Color, Ancestry, and National Origin
3. Failure to Prevent Discrimination
4. Harassment Based on Perceived Religion Against Employer
5. Harassment Based on Actual and Perceived Race, Color, Ancestry, and National Origin against Employer
6. Harassment Based on Perceived Religion Against Individual Defendant
7. Harassment Based on Actual and Perceived Race, Color, Ancestry, and National Origin Against Individual Defendant
8. Failure to Prevent Harassment
9. Retaliation in Violation of the FEHA
10. Retaliation in Violation of the Labor Code
11. Failure to Prevent Retaliation
12. Wrongful Termination in Violation of Public Policy
13. Intentional Infliction of Emotional Distress
14. Negligent Infliction of Emotional Distress
15. Failure to Provide Required Rest Periods
16. Defamation
17. Unlawful Business Practices

Del Frisco’s filed its Motion to Compel Arbitration on September 19, 2016. Patrick filed his Opposition on January 5, 2017. Del Frisco’s filed its Reply on January 11, 2017.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Del Frisco’s requests that this court take judicial notice of the following document:

• A copy of the American Arbitration Association’s (“AAA”) Employment Arbitration Rules and Mediation Procedures (“AAA Rules”).
Patrick opposes the court taking judicial notice of this document as lacking authentication. (See Objection No. 1.) Del Frisco’s points to two federal cases which properly took judicial notice of the AAA rules. (see Chavarria v. Ralphs Grocer Co. (C.D. Cal. 2011) 812 F.Supp.2d 1079, 1087, fn. 8.)
Patrick fails to assert that the attached AAA Rules are incorrect or inaccurate in any way. The court GRANTS the request for judicial notice of the AAA Rules.


Del Frisco’s requests with its Reply that this court take judicial notice of the following fact:

• Del Frisco’s Grille is a nationwide restaurant chain that operates restaurants in multiple states other than California, including Texas, Georgia, Colorado, New York, Tennessee, Massachusetts, Connecticut, New Jersey, Arkansas, Maryland, and Florida.

Del Frisco’s points to its own website showing its multiple locations. Although this request is made in its Reply, Del Frisco is responding to arguments made by Patrick that the Federal Arbitration Act does not apply.
Absent any argument by Patrick that would reasonably dispute the fact that Del Frisco’s operates in various other states, that court GRANTS the request for judicial notice of that fact.

II. OBJECTIONS

Patrick’s Objections

• Objection No. 1 is OVERRULED.
• Objections Nos. 2–3 are SUSTAINED.
• Objection No. 4 is OVERRULED.
• Objections Nos. 5–7 are OVERRULED.
• Objection No. 8 is SUSTAINED.

Del Frisco’s Objections

• Objections Nos. 1–4 are OVERRULED
• Objection No. 5 is OVERRULED, except as to the last sentence that starts with “To the contrary, Del Friscos prevented me from doing these things,” as to which the objection is SUSTAINED.
• Objection No. 6 is OVERRULED, except as to the first sentence, which starts with “It was unmistakeably clear that I was required to sign,” as to which the objection is SUSTAINED.
• Objection Nos. 7-9 are OVERRULED.
• Objection No. 10 is SUSTAINED.

III. MOTION TO COMPEL ARBITRATION

On petition of a party to an arbitration agreement to arbitrate a controversy, a court must order the petitioner and respondent to arbitrate the controversy if it determines the arbitration agreement exists, unless (1) the petitioner has waived its right to arbitrate; (2) grounds exist for the revocation of the agreement; or (3) “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Code Civ. Proc., § 1281.2.)

“[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The role of the trial court is to sit as a trier of fact, weighing any affidavits, declarations, and other documentary evidence, together with oral testimony received at the court's discretion, to reach a determination on the issue of arbitrability.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Del Frisco’s submits a document entitled “Receipt of Del Frisco’s Grille of Pasadena, LLC Mandatory Arbitration Agreement and Procedure for Resolving Disputes Arising out of its Employee’s Employment or Termination of Employment” (the “Receipt”). (Martin Decl. Ex. C.) According to Del Frisco’s Senior Human Resources Manager Robyn Martin (“Martin”), Patrick’s “personnel file also contains “an arbitration agreement signed by Mr. Patrick on or about November 7, 2015,” which references the Receipt and the “Mandatory Arbitration Agreement and Procedure for resolving Disputes. . . .[(“Arbitration Agreement”)]” (Martin Decl. ¶ 4.)

The court has overruled the objection to the Martin declaration as to the fact that the signed Receipt was in Patrick’s personnel file, but has sustained the objection to Martin stating that the Arbitration Agreement was presented to Patrick for review before he signed the Receipt. Patrick has stated that he never saw the Arbitration Agreement before this lawsuit, which the court accepts as undisputed. However, Patrick does not present any evidence that he did not sign the Receipt although he argues in his Opposition that he does not concede that he signed the receipt. (Opposition at p. 3.) Absent evidence that Patrick did not sign the receipt, the court accepts as true that Patrick signed the Receipt on or about November 7, 2015.

The Receipt provides the following:

I have received today a copy of Del Frisco’s Grille of Pasadena, LLC (“Del Frisco’s”) Mandatory Arbitration Agreement and Procedure For Resolving Disputes Arising Out Of Its Employees’ Employment Or Termination Of Employment (“Agreement”).

In consideration of my employment and/or continued employment, I agree to abide by the Agreement and to submit any and all legally recognized claims or controversies I may have arising out of my employment or termination of my employment with Del Frisco’s to arbitration under the procedures outlined in the Agreement. I understand that any demand I make for relief or recovery under any applicable law shall be resolved only by the arbitrator pursuant to the Agreement.

AS A CONDITION OF MY EMPLOYMENT, I AGREE TO WAIVE MY
RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED
TO MY EMPLOYMENT WITH DEL FRISCO’S.

I UNDERSTAND THAT I AM WAIVING MY RIGHT TO A JURY TRIAL
VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR
COERCION.

I UNDERSTAND THAT I HAVE A RIGHT TO COUNSULT WITH A
PERSON OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE
SIGNING THIS DOCUMENT.

I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH
DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY
AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION
ASSOCIATION.

(Martin Decl. Ex. C.)

While Patrick states that he did not actually receive a copy of the Arbitration Agreement, as noted above, he signed the Receipt that states that he did receive a copy of the Arbitration Agreement. The full Arbitration Agreement is also attached as Exhibit C to the Martin Declaration. The Arbitration Agreement provides, in pertinent part, that:

I. When Arbitration is Required

In the event of any dispute, claim, or controversy (collectively referred to as the “Dispute(s)”) arising out of any Employee’s employment or the cessation of such employment with Del Frisco’s Grille of Pasadena, LLC (“Del Frisco’s”) where either the Employee or Del Frisco’s alleges the other to have engaged in conduct in violation of any federal, state or local statute or other rule of law . . . .

. . .

Except as otherwise provided herein, the arbitration shall be conducted in accordance with the Employment Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time a demand for arbitration is made (copies available at www.adr.org, and each party agrees that the AAA Supplementary Rules for Class Arbitrations shall have no application to arbitrations conducted under this Agreement;

The arbitration shall be enforceable pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq; and any applicable state law. Where any conflict between the FAA and state law exists, the FAA shall govern.

. . .

6. Discovery

The Federal Rules of Civil Procedure shall be applied for purposes of discovery.

. . .

7. Governing Law

This Agreement shall be governed by and shall be interpreted in accordance with the Federal Arbitration Act, 9 U.S.C. § I et seq. and shall be conducted in accordance with the Employment Arbitration Rules of the American Arbitration Association.

AS A CONDITION OF MY EMPLOYMENT, I AGREE TO WAIVE MY
RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED
TO MY EMPLOYMENT WITH DEL FRISCO’S.

I UNDERSTAND THAT I AM WAIVING MY RIGHT TO A JURY TRIAL
VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR
COERCION.

I UNDERSTAND THAT I HAVE A RIGFIT TO CONSULT WITH A PERSON
OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE SIGNING
THIS DOCUMENT.

I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH
DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY
AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION
ASSOCIATION.

(Martin Decl. Ex. C.)

Patrick argues in his Opposition that the Receipt is not, by itself, a valid agreement to arbitrate because he was never provided with a copy of the Arbitration Agreement itself. (Opposition at pp. 2–4.) Patrick also argues that the incorporated Arbitration Agreement is not an enforceable contract because he did not sign it. (Id. at pp. 4–6.)

Patrick states in his declaration that he was not told during his original hiring that he would need to arbitrate any disputes with Del Frisco’s. (Patrick Decl. ¶ 3.) Patrick states that on November 7, 2015, Del Frisco’s held an “Anniversary Party,” after which Del Frisco’s “surprised” him with the one-page Receipt, and Del Frisco’s general manager told him, “I need each of you to complete and sign this before you leave.” (Patrick Decl. ¶ 6.) Patrick states that the manager “effectively communicated to all of us that as a condition of our continued employment with Del Frisco’s we were each required to immediately sign and return the Acknowledgement Form before leaving the Anniversary Party.” (Ibid.)

Patrick states that at no time was he presented with the five-page Arbitration agreement, nor was any portion of the Receipt or Agreement explained to him. (Complaint ¶ 7.) Patrick states that Del Frisco’s did not tell Patrick that the Arbitration Agreement incorporated the AAA rules or explain what those rules were. (Id. ¶ 8.) Patrick states that he was provided less than five minutes to sign and return the Receipt, and that Del Frisco’s did not tell him that he could take time to review and analyze the Receipt or have an attorney analyze it. (Id. ¶ 9.) Patrick states that he felt “tremendous pressure to sign and return the Acknowledge Form on the spot.” (Id. ¶ 10.) Patrick states that he was never given a copy of the Arbitration Agreement at any point while he was employed by Del Frisco’s. (Id. ¶ 11.)

As an initial matter, the court finds that by submitting the Receipt signed by Patrick and the Arbitration Agreement that is incorporated into the Receipt in the first paragraph, Del Frisco’s has met its initial burden to show that Patrick entered into a binding agreement to arbitrate. However, this does not resolve the issue the court will address below as to whether the

“A contract may validly incorporate by reference the terms of another document if the reference is clear and unequivocal. [Citation.] The terms of the incorporated document must be known or easily available to the contracting parties.” (Spellman v. Securities, Annuities & Ins. Services, Inc. (“Spellman) (1992) 8 Cal.App.4th 452, 457.)
In Spellman, an employee signed a “uniform application” that expressly required arbitration, and the Court of Appeal found that the application, although not containing the specific arbitration agreement “‘clearly referred to and identified the incorporated document wherein the arbitration clause appeared.’ [Citation.] [The application] states, in pertinent part: ‘You will strictly adhere to the Rules of Fair Practice of the National Association of Securities Dealers, Inc., as set forth in the NASD Manual, a copy of which GNA shall make available to you.’ Thus, both the U- 4 form and the contract require arbitration.” (Spellman, supra, 8 Cal.App.4th at p. 458.)

Here, the Receipt signed by Patrick incorporates by reference the terms of the Arbitration Agreement. While Patrick states that he was never provided with a copy of the Arbitration Agreement itself, he does not state that he ever asked anybody at Del Frisco’s for a copy for his review. In his Opposition, Patrick argues that Del Frisco’s deliberately hid the agreement from him (Opposition at p. 10), no evidence is presented by Patrick to support this statement, nor does Patrick present evidence of any failed efforts to obtain the agreement that the Receipt states he had received.

The court finds that the failure of Del Frisco’s to provide Patrick with a copy of either the five-page Arbitration Agreement or the incorporated AAA rules does not by itself render the agreement to arbitrate unenforceable or unconscionable. In Spellman, the contract incorporated an entirely different document, and did not even mention that this incorporated document included an arbitration agreement. If such an incorporation is proper, than the Receipt, which contains the basic provisions of the arbitration agreement and specifically identified the five-page Arbitration Agreement that included no other significant terms, is similarly proper.

Similarly, the fact that the Arbitration Agreement does not contain a signature block does not by itself render the agreement unenforceable, although the court will discuss this factor below with respect to unconscionability.

Moreover, the Receipt contains a very detailed description of the Arbitration Agreement. Contrary to Patrick’s contention that Del Frisco did not tell him that he was agreeing to arbitration or that the Arbitration Agreement incorporated the AAA rules, the Receipt handed to him by Del Frisco’s that he signed specifically states: “I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION ASSOCIATION.” (Martin Decl. Ex. C.) The Receipt also states in large, all-capital letters that Patrick is agreeing to waive his right to a jury trial.
While Patrick states that he was not given time to analyze the documents before signing it or to consult with an attorney or any other person, Patrick did not ask to have more time or to consult with an attorney, and there is no evidence that Del Frisco prevented him from doing so. To the contrary, the Receipt states: “I UNDERSTAND THAT I HAVE A RIGHT TO CONSULT WITH A PERSON OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE SIGNING THIS DOCUMENT.”

The court therefore finds that Patrick’s signature of the Receipt created a valid, enforceable agreement to arbitrate, and although Patrick was never provided with the Arbitration Agreement, that document is validly incorporated into the Receipt, and Patrick never asked for a copy of the full agreement. However, the court will discuss below as to unconscionability the impact of Del Frisco’s failure to provide Patrick with a copy of the full agreement.

Patrick also argues that the Receipt is impermissibly one-side, and does not create any obligation of Del Frisco’s to arbitrate under the agreement, and is therefore unenforceable. (Opposition at p. 4.)

In Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (“Marcus & Millichap”) (1998) 68 Cal.App.4th 83, 91 the Court of Appeal held that a purchase agreement in a real estate transaction “contemplated that the arbitration of disputes provision would be effective only if both buyers and sellers assented to that provision. Since the sellers did not assent to this provision the parties did not agree to binding arbitration.” The Court of Appeal noted in a footnote that:

. . . if there were no mutuality of remedy requirement, the seller-which is usually the offeree in the real estate sales context-would have absolutely no incentive to initial the arbitration provision and thereby bind itself to arbitrate disputes. This is because, under the Bello court's analysis, the offeror (usually the buyer) would be bound to arbitrate all disputes (provided it had initialed the arbitration provision) even if the seller did not agree to do so. Thus, once the buyer initialed this provision, the seller could have its cake and eat it too: the seller could force the buyer to arbitrate if the seller thought it was in its interest to do so, and could refuse to arbitrate if it believed it was disadvantageous to do so.

(Marcus & Millichap, supra, 68 Cal.App.4th at p. 91, fn. 6.)

However, the court in Marcus & Millichap made clear that its holding was limited to the facts of that case:

[We] conclude that, in order to decide this case, we need not determine whether mutuality of arbitration is always required. This is because, even if mutuality of the arbitral obligation is not generally required, it is clear the terms of the purchase agreement in this case contemplate that both buyer and seller must be bound before either is bound to arbitrate

(Id. at p. 91.)

The court held in Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, review denied (June 10, 2015) that “the writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement. [Citation.]” (Id. at p. 176.) The court based its holding enforcing the arbitration agreement signed only by the employee in part on the conduct of the employer showing an intent to comply with the arbitration agreement. The court held: “Evidence confirming the existence of an agreement to arbitrate, despite an unsigned agreement, can be based, for example, on “conduct from which one could imply either ratification or implied acceptance of such a provision.” (Id. at p. 176.) The court found on the facts there: “In this case, not only was the agreement authored by Balco, and printed on Bay Alarm's letterhead, but Balco's later conduct evinces an intent to be bound by the arbitration agreement when it invoked the arbitration process to recover the $10,798.08 overpayment allegedly made to Serafin, and when it filed the motion to stay Serafin's employment litigation and to compel arbitration.” (Id. at pp. 176-177.)

California courts have held that in the employment context – not at issue in Marcus & Millichap -- acceptance of an agreement to arbitrate may be “implied-in-fact where, as here, the employee's continued employment constitutes her acceptance of an agreement proposed by her employer . . . .” (Harris v. Tap Worldwide, LLC (“Harris”) (2016) 248 Cal.App.4th 373, 384.) “Under California law, assent to an offer can occur either by way of performance under the contract or the acceptance of consideration.” (Ibid.)

Here, by offering Patrick continued employment under the terms of the Receipt and Arbitration Agreement, and then continuing to employ Patrick after he signed the Receipt, Del Frisco’s performed under the contract and accepted Patrick’s labor as consideration under the agreement. While the receipt’s language only mentions Patrick, the Arbitration Agreement, which was properly incorporated into the Receipt, clearly states that “[t]he Employee and Del Frisco’s shall each be precluded from raising in any federal or state court of law or equity any claim or controversy or cause of action which could be raised in arbitration under this Agreement.” (Martin Decl. Ex. C at p. 1.)
The court notes that Patrick argues that the FAA does not apply. (Opposition at pp. 6–7.) However, the Arbitration Agreement specifically states that the FAA applies.

The court also notes that it has taken judicial notice of the fact that Del Frisco’s operates in multiple states, and that the Supreme Court has held in Circuit City Stores, Inc. v. Adams (2001) 532 U.A. 105, 113–114 that an employee’s employment contract with Circuit City, a national chain, was subject to the FAA because only certain employment contracts — namely, those of seamen and railroad employees — are excluded by the FAA. Regardless, Patrick cites to no substantive difference between the FAA and California law that would change the analysis of the enforceability of the Receipt or the Arbitration Agreement.

The court will next turn to Patrick’s arguments that the Arbitration Agreement is both procedurally and substantive unconscionable.

A. UNCONSCIONABILITY

“Under both the Federal Arbitration Act (FAA) and the California Arbitration Act (CAA), arbitration agreements are valid, irrevocable and enforceable except upon grounds that exist for revocation of the contract generally.” (Serpa v. California Surety Investigations, Inc. (“Serpa”) (2013) 215 Cal.App.4th 695, 701–702.) Arbitration agreements in the employment context are subject to these same limits. (Armendariz v. Foundation Health Psychare Services, Inc. (“Armendariz”) (2000) 24 Cal.4th 83, 97–99.) “Like any other contract, an agreement to arbitrate is subject to revocation if the agreement is unconscionable.” (Serpa, supra, 215 Cal.App.4th at p. 702.)

Unconscionability has procedural and substantive elements.

1. Procedural Unconscionability
“Procedural unconscionability focuses on the elements of oppression and surprise.” (Serpa, supra, 215 Cal.App.4th at p. 702.) While it is well settled that take-it-or-leave-it employment contracts typically contain some aspects of procedural unconscionability, “[w]hen . . . there is no other indication of oppression or surprise, ‘the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’ [Citation.]” (Serpa, supra, 215 Cal.App.4th at p. 704.) “‘[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.’ [Citation.]” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915.)

Patrick argues that the Arbitration Agreement is strongly procedurally unconscionable because Del Frisco’s “hid” the contents of the Arbitration Agreement from Patrick, forced him to sign the Agreement as a condition of his employment, failed to attach the AAA rules, and surprised him with the agreement after the Anniversary Party. (Opposition at pp. 9–12,)

The courts have found that the failure of the employer to provide the AAA rules where the rules are available online does not make the agreement procedurally unconscionable. (See e.g., Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472, as modified (Oct. 2, 2013) [“Thus, we find the failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability.”] The court in Peng also noted that the AAA arbitration rules, as here, were available online. (Id. at p. 1469, fn. 5.) The Receipt, which Patrick signed, states that the AAA rules would apply. Patrick did not request to review those rules before signing the agreement, and had access to the rules online.

However, the court finds that there is some procedural unconscionability because Del Frisco’s incorporated the five-page Arbitration Agreement into a single-page Receipt and did not provide Patrick with the Arbitration Agreement. In addition, according to Patrick, he was pressured into signing the Receipt as a condition of his continued employment without being given time fully to review the Receipt. However, the court also notes that Patrick never asked to review the full Arbitration Agreement, and that the Receipt contains all of the pertinent information, including the fact that Patrick was agreeing to arbitrate his disputes with Del Frisco’s, was agreeing to waive his right to a jury trial, and was agreeing to use AAA for arbitration services. As noted above, there is no evidence that Del Frisco’s deliberately “hid” the Arbitration Agreement from Patrick. Rather, it incorporated it into a one-page summary, and Patrick did not request at any time to review the full Arbitration Agreement.

The court next turns to whether the arbitration agreement was substantively unconscionable.

2. Substantive Unconscionability
“Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create an ‘“‘overly harsh’”’ or ‘“‘one-sided’” result’ [Citation.]” (Serpa, supra, 215 Cal.App.4th at p. 702.) An agreement must also contain a “modicum of bilaterality” such that the agreement is fair to both sides and not weighted in the employer’s favor. (Armendariz, supra, 24 Cal.4th at pp. 117–118.) “[A]n arbitration agreement is lawful if it ‘(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum. Thus, an employee who is made to use arbitration as a condition of employment “effectively may vindicate [his or her] statutory cause of action in the arbitral forum.” ’ [Citation.]” (Id. at p. 102.)

1. Mutuality
Patrick argues that the Arbitration Agreement lacks mutuality. (Opposition at p. 13.) As addressed above, both Patrick and Del Frisco’s were bound by the terms of the Arbitration Agreement.
2. Right to Modify or Revoke
Patrick argues that because Del Frisco never gave Patrick a copy of the Arbitration Agreement, this effectively gave Del Frisco the right to modify the Arbitration Agreement at will without Patrick knowing this. (Opposition at p. 13.) However, as discussed above, the Receipt properly incorporated the Arbitration Agreement, which contains no explicit right to modification.

Additionally, the court in Harris held that even agreements with explicit unilateral modification provision are not “illusory” agreements, holding:
We have reconsidered the views of the majority in Sparks concerning illusory contracts in the employment context. We do so because of: controlling California Supreme Court authority; the decisional authority in effect prior to and after the Asmus [v. Pacific Bell (2000) 23 Cal.4th 1] opinion was filed; and the subsequent express or implied disagreement of the Courts of Appeal with our illusory contract analysis in Sparks. Hence, we conclude contrary to Sparks, the employer's right to change the Employee Handbook does not render the arbitration agreement illusory.

(248 Cal.App.4th at p. 390.)

The court in Harris acknowledged that “[i]n order for a contract to be valid, the parties must exchange promises that represent legal obligations” and that “[a] contract is unenforceable as illusory when one of the parties has the unfettered or arbitrary right to modify or terminate the agreement or assumes no obligations thereunder.” (Id. at p. 385.) However, the Court of Appeal held that arbitration agreements that contain unilateral modification provisions by an employer are not illusory because “the implied covenant of good faith and fair dealing or generalized fairness concerns limit the contracting party's authority to modify contractual terms.” (Id. at p. 389.) The court held succinctly that “the employer's right to change the Employee Handbook does not render the arbitration agreement illusory.” (Id. at p. 390.)

3. Class Action Waiver

Patrick argues that the Arbitration Agreement’s class action waiver renders the agreement unconscionable. (Opposition at pp. 13–14.)
However, under the FAA, both the U.S. Supreme Court and the California Supreme Court recognize that class action waivers do not render an arbitration agreement unconscionable. (See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333; Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348.) As noted above, the court has taken judicial notice of the fact that Del Frisco’s operates in multiple states, and the Arbitration Agreement specifically states that the FAA applies.

Additionally, the court notes that Patrick has not filed any class action causes of action. The class action waiver provision does not render the Arbitration Agreement substantive unconscionable.

4. Cost Shifting

Patrick argues that the Arbitration Agreement’s provision providing that a party must pay the attorneys’ fees of a party who moves to compel arbitration is unconscionable because it violates FEHA’s requirement that a prevailing defendant employer only recovers attorneys’ fees if the employee’s claim is frivolous, unreasonable or groundless. (Opposition at p. 14.)

Notably, the arbitration agreement provides that “[t]he cost of arbitration fees shall be paid by Del Frisco’s,” with the limited exception if the employee makes the initial demand for arbitration, in which case the employee has to pay the lower of the AAA initial filing fee or the filing fee for filing a complaint in federal court. (Martin Decl. Ex. C [Arbitration Agreement], at p. 4.)

However, the Arbitration Agreement also provides that “if any party is required to file a lawsuit to compel arbitration pursuant to this Agreement, or defend against a lawsuit filed in court contrary to this Agreement’s mandatory arbitration provision, such party, if successful, shall be entitled to recover his, her or its reasonable costs and attorneys’ fees incurred in such an action, including costs and attorneys’ fees incurred in any appeal.” (Arbitration Agreement at p. 5.) It is this provision that Patrick claims is substantively unconscionable.

Patrick is correct that the court in Trivedi v. Curexo Technology Corp. (“Trivendi”) (2010) 189 Cal.App.4th 387, 394, disapproved of on other grounds by Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, held that an arbitration agreement that “included a mandatory attorney fee and cost provision in favor of the prevailing party was unconscionable because it placed [employee plaintiff] at greater risk than if he retained the right to bring his FEHA claims in court.” “‘[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.’ [Citation.” (Id. at p. 395.)

Here, however, the provision cited to by Patrick only provides that the successful party on a motion to compel arbitration would be entitled to recover attorneys’ fees in “such an action,” i.e., the fees incurred in the lawsuit, not the fees in the later arbitration. The cited provision does not address attorneys’ fees for a prevailing party in FEHA actions, but only for a prevailing party in a motion to compel arbitration.

The court in Armendariz found that an arbitration agreement is valid if it “does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum.”’” (Armendariz (2000) 24 Cal.4th 83, 102.) In Sanchez, the court found an auto arbitration contract not substantively unconscionable where the employer advanced only $2,500 of arbitration costs. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th 899 at pp. 917–918.)

Courts have held that “‘when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court’” (Fittante v. Palm Springs Motors, Inc. (“Fittante”) (2003) 105 Cal.App.4th 708, 718–719.) However, the court in Fittante also held that “in cases where an employer requires an employee to arbitrate his or her claims, including statutory claims, the agreement must be interpreted (in the absence of any express terms to the contrary) to require the employer to pay any unusual costs associated with arbitration, such as the arbitrator's fees.” (Id. at p. 719.)

Patrick has cited to no case law holding that an arbitration agreement that requires the payment of attorneys’ fees for a party who is forced to bring a successful motion to compel arbitration is unconscionable. This provision does not affect the right to attorneys’ fees under a FEHA cause of action, nor would these fees be required as a condition of access to the arbitration forum. Patrick could have consented to arbitration and avoided any additional attorneys’ fees.

Regardless, Del Frisco’s has agreed to not seek attorneys’ fees under this provision. (Reply at p. 11, fn. 10.) The inclusion of this provision is not unconscionable, and Del Frisco’s statement that it is not seeking attorneys’ fees under this provision renders Patrick’s argument moot.

Because no portion of the Receipt or Arbitration Agreement is substantively unconscionable, and because the low level of procedural unconscionability alone is insufficient for this court to refuse to enforce an arbitration agreement, the Motion to Compel Arbitration is GRANTED.

Defendants to give notice.

DATED: January 20, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

Case Number: BC630126    Hearing Date: January 24, 2017    Dept: 78

Superior Court of California
County of Los Angeles
Department 78

LIAM PATRICK;

Plaintiff,

vs.

DEL FRISCO’S GRILLE OF PASADENA, LLC, et al.;

Defendants. Case No.: BC 630126

Hearing Date: January 20, 2017


[TENTATIVE] RULING RE:

DEFENDANTS’ MOTION TO COMPEL ARBITRATION.

Defendants’ Motion to Compel Arbitration is GRANTED. This case is stayed pending completion of the arbitration. The case is set for a Status Hearing re Arbitration for July __, 2017, at 8:30 a.m.

FACTUAL BACKGROUND

This is a discrimination case. The Complaint alleges that Plaintiff Liam Patrick (“Patrick”) began working for defendants Del Frisco’s Grille of Pasadena, LLC, Del Frisco’s Grille of California, Inc., and Del Frisco’s Restaurant Group, Inc. (collectively, “Del Frisco’s”) on November 23, 2014 as a server. (Complaint ¶ 17.) Patrick alleges that his supervisors Angel Flores (“Flores”) and Shara Nagelberg (“Nagelberg”) harassed him on the basis that they perceived him to be Muslim and Middle Eastern of Punjabi descent based on the color of his skin, despite Patrick being from the Caribbean and not being Muslim. (Complaint ¶¶ 18–21.)

Patrick complained about the harassment on January 26, 2016. (Complaint ¶ 23.) Patrick also complained about Nagelberg’s repeated “comping” of items off customer’s bills after they had paid and pocketing the difference. (Complaint ¶ 24.)

On February 7, 2016, Flores and Nagelberg falsely accused Patrick of professing a desire to kill Nagelberg. (Complaint ¶ 26.) Del Frisco’s then fired Patrick. (Complaint ¶ 28.)

PROCEDURAL HISTORY

Patrick filed his Complaint on August 12, 2016, alleging seventeen causes of action:

1. Discrimination Based on Perceived Religion
2. Discrimination Based on Actual and Perceived Race, Color, Ancestry, and National Origin
3. Failure to Prevent Discrimination
4. Harassment Based on Perceived Religion Against Employer
5. Harassment Based on Actual and Perceived Race, Color, Ancestry, and National Origin against Employer
6. Harassment Based on Perceived Religion Against Individual Defendant
7. Harassment Based on Actual and Perceived Race, Color, Ancestry, and National Origin Against Individual Defendant
8. Failure to Prevent Harassment
9. Retaliation in Violation of the FEHA
10. Retaliation in Violation of the Labor Code
11. Failure to Prevent Retaliation
12. Wrongful Termination in Violation of Public Policy
13. Intentional Infliction of Emotional Distress
14. Negligent Infliction of Emotional Distress
15. Failure to Provide Required Rest Periods
16. Defamation
17. Unlawful Business Practices

Del Frisco’s filed its Motion to Compel Arbitration on September 19, 2016. Patrick filed his Opposition on January 5, 2017. Del Frisco’s filed its Reply on January 11, 2017.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Del Frisco’s requests that this court take judicial notice of the following document:

• A copy of the American Arbitration Association’s (“AAA”) Employment Arbitration Rules and Mediation Procedures (“AAA Rules”).
Patrick opposes the court taking judicial notice of this document as lacking authentication. (See Objection No. 1.) Del Frisco’s points to two federal cases which properly took judicial notice of the AAA rules. (see Chavarria v. Ralphs Grocer Co. (C.D. Cal. 2011) 812 F.Supp.2d 1079, 1087, fn. 8.)
Patrick fails to assert that the attached AAA Rules are incorrect or inaccurate in any way. The court GRANTS the request for judicial notice of the AAA Rules.


Del Frisco’s requests with its Reply that this court take judicial notice of the following fact:

• Del Frisco’s Grille is a nationwide restaurant chain that operates restaurants in multiple states other than California, including Texas, Georgia, Colorado, New York, Tennessee, Massachusetts, Connecticut, New Jersey, Arkansas, Maryland, and Florida.
Del Frisco’s points to its own website showing its multiple locations. Although this request is made in its Reply, Del Frisco is responding to arguments made by Patrick that the Federal Arbitration Act does not apply.
Absent any argument by Patrick that would reasonably dispute the fact that Del Frisco’s operates in various other states, that court GRANTS the request for judicial notice of that fact.
II. OBJECTIONS

Patrick’s Objections

• Objection No. 1 is OVERRULED.
• Objections Nos. 2–3 are SUSTAINED.
• Objection No. 4 is OVERRULED.
• Objections Nos. 5–7 are OVERRULED.
• Objection No. 8 is SUSTAINED.

Del Frisco’s Objections

• Objections Nos. 1–4 are OVERRULED
• Objection No. 5 is OVERRULED, except as to the last sentence that starts with “To the contrary, Del Friscos prevented me from doing these things,” as to which the objection is SUSTAINED.
• Objection No. 6 is OVERRULED, except as to the first sentence, which starts with “It was unmistakeably clear that I was required to sign,” as to which the objection is SUSTAINED.
• Objection Nos. 7-9 are OVERRULED.
• Objection No. 10 is SUSTAINED.

III. MOTION TO COMPEL ARBITRATION

On petition of a party to an arbitration agreement to arbitrate a controversy, a court must order the petitioner and respondent to arbitrate the controversy if it determines the arbitration agreement exists, unless (1) the petitioner has waived its right to arbitrate; (2) grounds exist for the revocation of the agreement; or (3) “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Code Civ. Proc., § 1281.2.)

“[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The role of the trial court is to sit as a trier of fact, weighing any affidavits, declarations, and other documentary evidence, together with oral testimony received at the court's discretion, to reach a determination on the issue of arbitrability.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Del Frisco’s submits a document entitled “Receipt of Del Frisco’s Grille of Pasadena, LLC Mandatory Arbitration Agreement and Procedure for Resolving Disputes Arising out of its Employee’s Employment or Termination of Employment” (the “Receipt”). (Martin Decl. Ex. C.) According to Del Frisco’s Senior Human Resources Manager Robyn Martin (“Martin”), Patrick’s “personnel file also contains “an arbitration agreement signed by Mr. Patrick on or about November 7, 2015,” which references the Receipt and the “Mandatory Arbitration Agreement and Procedure for resolving Disputes. . . .[(“Arbitration Agreement”)]” (Martin Decl. ¶ 4.)

The court has overruled the objection to the Martin declaration as to the fact that the signed Receipt was in Patrick’s personnel file, but has sustained the objection to Martin stating that the Arbitration Agreement was presented to Patrick for review before he signed the Receipt. Patrick has stated that he never saw the Arbitration Agreement before this lawsuit, which the court accepts as undisputed. However, Patrick does not present any evidence that he did not sign the Receipt although he argues in his Opposition that he does not concede that he signed the receipt. (Opposition at p. 3.) Absent evidence that Patrick did not sign the receipt, the court accepts as true that Patrick signed the Receipt on or about November 7, 2015.

The Receipt provides the following:

I have received today a copy of Del Frisco’s Grille of Pasadena, LLC (“Del Frisco’s”) Mandatory Arbitration Agreement and Procedure For Resolving Disputes Arising Out Of Its Employees’ Employment Or Termination Of Employment (“Agreement”).

In consideration of my employment and/or continued employment, I agree to abide by the Agreement and to submit any and all legally recognized claims or controversies I may have arising out of my employment or termination of my employment with Del Frisco’s to arbitration under the procedures outlined in the Agreement. I understand that any demand I make for relief or recovery under any applicable law shall be resolved only by the arbitrator pursuant to the Agreement.

AS A CONDITION OF MY EMPLOYMENT, I AGREE TO WAIVE MY
RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED
TO MY EMPLOYMENT WITH DEL FRISCO’S.

I UNDERSTAND THAT I AM WAIVING MY RIGHT TO A JURY TRIAL
VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR
COERCION.

I UNDERSTAND THAT I HAVE A RIGHT TO COUNSULT WITH A
PERSON OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE
SIGNING THIS DOCUMENT.

I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH
DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY
AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION
ASSOCIATION.

(Martin Decl. Ex. C.)

While Patrick states that he did not actually receive a copy of the Arbitration Agreement, as noted above, he signed the Receipt that states that he did receive a copy of the Arbitration Agreement. The full Arbitration Agreement is also attached as Exhibit C to the Martin Declaration. The Arbitration Agreement provides, in pertinent part, that:

I. When Arbitration is Required

In the event of any dispute, claim, or controversy (collectively referred to as the “Dispute(s)”) arising out of any Employee’s employment or the cessation of such employment with Del Frisco’s Grille of Pasadena, LLC (“Del Frisco’s”) where either the Employee or Del Frisco’s alleges the other to have engaged in conduct in violation of any federal, state or local statute or other rule of law . . . .

. . .

Except as otherwise provided herein, the arbitration shall be conducted in accordance with the Employment Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time a demand for arbitration is made (copies available at www.adr.org, and each party agrees that the AAA Supplementary Rules for Class Arbitrations shall have no application to arbitrations conducted under this Agreement;

The arbitration shall be enforceable pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq; and any applicable state law. Where any conflict between the FAA and state law exists, the FAA shall govern.

. . .

6. Discovery

The Federal Rules of Civil Procedure shall be applied for purposes of discovery.

. . .

7. Governing Law

This Agreement shall be governed by and shall be interpreted in accordance with the Federal Arbitration Act, 9 U.S.C. § I et seq. and shall be conducted in accordance with the Employment Arbitration Rules of the American Arbitration Association.

AS A CONDITION OF MY EMPLOYMENT, I AGREE TO WAIVE MY
RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED
TO MY EMPLOYMENT WITH DEL FRISCO’S.

I UNDERSTAND THAT I AM WAIVING MY RIGHT TO A JURY TRIAL
VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR
COERCION.

I UNDERSTAND THAT I HAVE A RIGFIT TO CONSULT WITH A PERSON
OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE SIGNING
THIS DOCUMENT.

I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH
DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY
AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION
ASSOCIATION.

(Martin Decl. Ex. C.)

Patrick argues in his Opposition that the Receipt is not, by itself, a valid agreement to arbitrate because he was never provided with a copy of the Arbitration Agreement itself. (Opposition at pp. 2–4.) Patrick also argues that the incorporated Arbitration Agreement is not an enforceable contract because he did not sign it. (Id. at pp. 4–6.)

Patrick states in his declaration that he was not told during his original hiring that he would need to arbitrate any disputes with Del Frisco’s. (Patrick Decl. ¶ 3.) Patrick states that on November 7, 2015, Del Frisco’s held an “Anniversary Party,” after which Del Frisco’s “surprised” him with the one-page Receipt, and Del Frisco’s general manager told him, “I need each of you to complete and sign this before you leave.” (Patrick Decl. ¶ 6.) Patrick states that the manager “effectively communicated to all of us that as a condition of our continued employment with Del Frisco’s we were each required to immediately sign and return the Acknowledgement Form before leaving the Anniversary Party.” (Ibid.)

Patrick states that at no time was he presented with the five-page Arbitration agreement, nor was any portion of the Receipt or Agreement explained to him. (Complaint ¶ 7.) Patrick states that Del Frisco’s did not tell Patrick that the Arbitration Agreement incorporated the AAA rules or explain what those rules were. (Id. ¶ 8.) Patrick states that he was provided less than five minutes to sign and return the Receipt, and that Del Frisco’s did not tell him that he could take time to review and analyze the Receipt or have an attorney analyze it. (Id. ¶ 9.) Patrick states that he felt “tremendous pressure to sign and return the Acknowledge Form on the spot.” (Id. ¶ 10.) Patrick states that he was never given a copy of the Arbitration Agreement at any point while he was employed by Del Frisco’s. (Id. ¶ 11.)

As an initial matter, the court finds that by submitting the Receipt signed by Patrick and the Arbitration Agreement that is incorporated into the Receipt in the first paragraph, Del Frisco’s has met its initial burden to show that Patrick entered into a binding agreement to arbitrate. However, this does not resolve the issue the court will address below as to whether the

“A contract may validly incorporate by reference the terms of another document if the reference is clear and unequivocal. [Citation.] The terms of the incorporated document must be known or easily available to the contracting parties.” (Spellman v. Securities, Annuities & Ins. Services, Inc. (“Spellman) (1992) 8 Cal.App.4th 452, 457.)
In Spellman, an employee signed a “uniform application” that expressly required arbitration, and the Court of Appeal found that the application, although not containing the specific arbitration agreement “‘clearly referred to and identified the incorporated document wherein the arbitration clause appeared.’ [Citation.] [The application] states, in pertinent part: ‘You will strictly adhere to the Rules of Fair Practice of the National Association of Securities Dealers, Inc., as set forth in the NASD Manual, a copy of which GNA shall make available to you.’ Thus, both the U- 4 form and the contract require arbitration.” (Spellman, supra, 8 Cal.App.4th at p. 458.)
Here, the Receipt signed by Patrick incorporates by reference the terms of the Arbitration Agreement. While Patrick states that he was never provided with a copy of the Arbitration Agreement itself, he does not state that he ever asked anybody at Del Frisco’s for a copy for his review. In his Opposition, Patrick argues that Del Frisco’s deliberately hid the agreement from him (Opposition at p. 10), no evidence is presented by Patrick to support this statement, nor does Patrick present evidence of any failed efforts to obtain the agreement that the Receipt states he had received.
The court finds that the failure of Del Frisco’s to provide Patrick with a copy of either the five-page Arbitration Agreement or the incorporated AAA rules does not by itself render the agreement to arbitrate unenforceable or unconscionable. In Spellman, the contract incorporated an entirely different document, and did not even mention that this incorporated document included an arbitration agreement. If such an incorporation is proper, than the Receipt, which contains the basic provisions of the arbitration agreement and specifically identified the five-page Arbitration Agreement that included no other significant terms, is similarly proper.
Similarly, the fact that the Arbitration Agreement does not contain a signature block does not by itself render the agreement unenforceable, although the court will discuss this factor below with respect to unconscionability.
Moreover, the Receipt contains a very detailed description of the Arbitration Agreement. Contrary to Patrick’s contention that Del Frisco did not tell him that he was agreeing to arbitration or that the Arbitration Agreement incorporated the AAA rules, the Receipt handed to him by Del Frisco’s that he signed specifically states: “I AGREE THAT ALL DISPUTES RELATING TO MY EMPLOYMENT WITH DEL FRISCO’S OR TERMINATION THEREOF SHALL BE DECIDED BY AN ARBITRATOR THROUGH THE AMERICAN ARBITRATION ASSOCIATION.” (Martin Decl. Ex. C.) The Receipt also states in large, all-capital letters that Patrick is agreeing to waive his right to a jury trial.
While Patrick states that he was not given time to analyze the documents before signing it or to consult with an attorney or any other person, Patrick did not ask to have more time or to consult with an attorney, and there is no evidence that Del Frisco prevented him from doing so. To the contrary, the Receipt states: “I UNDERSTAND THAT I HAVE A RIGHT TO CONSULT WITH A PERSON OF MY CHOOSING, INCLUDING AN ATTORNEY, BEFORE SIGNING THIS DOCUMENT.”
The court therefore finds that Patrick’s signature of the Receipt created a valid, enforceable agreement to arbitrate, and although Patrick was never provided with the Arbitration Agreement, that document is validly incorporated into the Receipt, and Patrick never asked for a copy of the full agreement. However, the court will discuss below as to unconscionability the impact of Del Frisco’s failure to provide Patrick with a copy of the full agreement.
Patrick also argues that the Receipt is impermissibly one-side, and does not create any obligation of Del Frisco’s to arbitrate under the agreement, and is therefore unenforceable. (Opposition at p. 4.)
In Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (“Marcus & Millichap”) (1998) 68 Cal.App.4th 83, 91 the Court of Appeal held that a purchase agreement in a real estate transaction “contemplated that the arbitration of disputes provision would be effective only if both buyers and sellers assented to that provision. Since the sellers did not assent to this provision the parties did not agree to binding arbitration.” The Court of Appeal noted in a footnote that:
. . . if there were no mutuality of remedy requirement, the seller-which is usually the offeree in the real estate sales context-would have absolutely no incentive to initial the arbitration provision and thereby bind itself to arbitrate disputes. This is because, under the Bello court's analysis, the offeror (usually the buyer) would be bound to arbitrate all disputes (provided it had initialed the arbitration provision) even if the seller did not agree to do so. Thus, once the buyer initialed this provision, the seller could have its cake and eat it too: the seller could force the buyer to arbitrate if the seller thought it was in its interest to do so, and could refuse to arbitrate if it believed it was disadvantageous to do so.

(Marcus & Millichap, supra, 68 Cal.App.4th at p. 91, fn. 6.)
However, the court in Marcus & Millichap made clear that its holding was limited to the facts of that case:
[We] conclude that, in order to decide this case, we need not determine whether mutuality of arbitration is always required. This is because, even if mutuality of the arbitral obligation is not generally required, it is clear the terms of the purchase agreement in this case contemplate that both buyer and seller must be bound before either is bound to arbitrate
(Id. at p. 91.)
The court held in Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, review denied (June 10, 2015) that “the writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement. [Citation.]” (Id. at p. 176.) The court based its holding enforcing the arbitration agreement signed only by the employee in part on the conduct of the employer showing an intent to comply with the arbitration agreement. The court held: “Evidence confirming the existence of an agreement to arbitrate, despite an unsigned agreement, can be based, for example, on “conduct from which one could imply either ratification or implied acceptance of such a provision.” (Id. at p. 176.) The court found on the facts there: “In this case, not only was the agreement authored by Balco, and printed on Bay Alarm's letterhead, but Balco's later conduct evinces an intent to be bound by the arbitration agreement when it invoked the arbitration process to recover the $10,798.08 overpayment allegedly made to Serafin, and when it filed the motion to stay Serafin's employment litigation and to compel arbitration.” (Id. at pp. 176-177.)
California courts have held that in the employment context – not at issue in Marcus & Millichap -- acceptance of an agreement to arbitrate may be “implied-in-fact where, as here, the employee's continued employment constitutes her acceptance of an agreement proposed by her employer . . . .” (Harris v. Tap Worldwide, LLC (“Harris”) (2016) 248 Cal.App.4th 373, 384.) “Under California law, assent to an offer can occur either by way of performance under the contract or the acceptance of consideration.” (Ibid.)
Here, by offering Patrick continued employment under the terms of the Receipt and Arbitration Agreement, and then continuing to employ Patrick after he signed the Receipt, Del Frisco’s performed under the contract and accepted Patrick’s labor as consideration under the agreement. While the receipt’s language only mentions Patrick, the Arbitration Agreement, which was properly incorporated into the Receipt, clearly states that “[t]he Employee and Del Frisco’s shall each be precluded from raising in any federal or state court of law or equity any claim or controversy or cause of action which could be raised in arbitration under this Agreement.” (Martin Decl. Ex. C at p. 1.)
The court notes that Patrick argues that the FAA does not apply. (Opposition at pp. 6–7.) However, the Arbitration Agreement specifically states that the FAA applies.
The court also notes that it has taken judicial notice of the fact that Del Frisco’s operates in multiple states, and that the Supreme Court has held in Circuit City Stores, Inc. v. Adams (2001) 532 U.A. 105, 113–114 that an employee’s employment contract with Circuit City, a national chain, was subject to the FAA because only certain employment contracts — namely, those of seamen and railroad employees — are excluded by the FAA. Regardless, Patrick cites to no substantive difference between the FAA and California law that would change the analysis of the enforceability of the Receipt or the Arbitration Agreement.
The court will next turn to Patrick’s arguments that the Arbitration Agreement is both procedurally and substantive unconscionable.
A. UNCONSCIONABILITY
“Under both the Federal Arbitration Act (FAA) and the California Arbitration Act (CAA), arbitration agreements are valid, irrevocable and enforceable except upon grounds that exist for revocation of the contract generally.” (Serpa v. California Surety Investigations, Inc. (“Serpa”) (2013) 215 Cal.App.4th 695, 701–702.) Arbitration agreements in the employment context are subject to these same limits. (Armendariz v. Foundation Health Psychare Services, Inc. (“Armendariz”) (2000) 24 Cal.4th 83, 97–99.) “Like any other contract, an agreement to arbitrate is subject to revocation if the agreement is unconscionable.” (Serpa, supra, 215 Cal.App.4th at p. 702.)

Unconscionability has procedural and substantive elements.

1. Procedural Unconscionability
“Procedural unconscionability focuses on the elements of oppression and surprise.” (Serpa, supra, 215 Cal.App.4th at p. 702.) While it is well settled that take-it-or-leave-it employment contracts typically contain some aspects of procedural unconscionability, “[w]hen . . . there is no other indication of oppression or surprise, ‘the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’ [Citation.]” (Serpa, supra, 215 Cal.App.4th at p. 704.) “‘[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.’ [Citation.]” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915.)

Patrick argues that the Arbitration Agreement is strongly procedurally unconscionable because Del Frisco’s “hid” the contents of the Arbitration Agreement from Patrick, forced him to sign the Agreement as a condition of his employment, failed to attach the AAA rules, and surprised him with the agreement after the Anniversary Party. (Opposition at pp. 9–12,)

The courts have found that the failure of the employer to provide the AAA rules where the rules are available online does not make the agreement procedurally unconscionable. (See e.g., Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472, as modified (Oct. 2, 2013) [“Thus, we find the failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability.”] The court in Peng also noted that the AAA arbitration rules, as here, were available online. (Id. at p. 1469, fn. 5.) The Receipt, which Patrick signed, states that the AAA rules would apply. Patrick did not request to review those rules before signing the agreement, and had access to the rules online.

However, the court finds that there is some procedural unconscionability because Del Frisco’s incorporated the five-page Arbitration Agreement into a single-page Receipt and did not provide Patrick with the Arbitration Agreement. In addition, according to Patrick, he was pressured into signing the Receipt as a condition of his continued employment without being given time fully to review the Receipt. However, the court also notes that Patrick never asked to review the full Arbitration Agreement, and that the Receipt contains all of the pertinent information, including the fact that Patrick was agreeing to arbitrate his disputes with Del Frisco’s, was agreeing to waive his right to a jury trial, and was agreeing to use AAA for arbitration services. As noted above, there is no evidence that Del Frisco’s deliberately “hid” the Arbitration Agreement from Patrick. Rather, it incorporated it into a one-page summary, and Patrick did not request at any time to review the full Arbitration Agreement.

The court next turns to whether the arbitration agreement was substantively unconscionable.

2. Substantive Unconscionability
“Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create an ‘“‘overly harsh’”’ or ‘“‘one-sided’” result’ [Citation.]” (Serpa, supra, 215 Cal.App.4th at p. 702.) An agreement must also contain a “modicum of bilaterality” such that the agreement is fair to both sides and not weighted in the employer’s favor. (Armendariz, supra, 24 Cal.4th at pp. 117–118.) “[A]n arbitration agreement is lawful if it ‘(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum. Thus, an employee who is made to use arbitration as a condition of employment “effectively may vindicate [his or her] statutory cause of action in the arbitral forum.” ’ [Citation.]” (Id. at p. 102.)

1. Mutuality
Patrick argues that the Arbitration Agreement lacks mutuality. (Opposition at p. 13.) As addressed above, both Patrick and Del Frisco’s were bound by the terms of the Arbitration Agreement.
2. Right to Modify or Revoke
Patrick argues that because Del Frisco never gave Patrick a copy of the Arbitration Agreement, this effectively gave Del Frisco the right to modify the Arbitration Agreement at will without Patrick knowing this. (Opposition at p. 13.) However, as discussed above, the Receipt properly incorporated the Arbitration Agreement, which contains no explicit right to modification.
Additionally, the court in Harris held that even agreements with explicit unilateral modification provision are not “illusory” agreements, holding:
We have reconsidered the views of the majority in Sparks concerning illusory contracts in the employment context. We do so because of: controlling California Supreme Court authority; the decisional authority in effect prior to and after the Asmus [v. Pacific Bell (2000) 23 Cal.4th 1] opinion was filed; and the subsequent express or implied disagreement of the Courts of Appeal with our illusory contract analysis in Sparks. Hence, we conclude contrary to Sparks, the employer's right to change the Employee Handbook does not render the arbitration agreement illusory.
(248 Cal.App.4th at p. 390.)
The court in Harris acknowledged that “[i]n order for a contract to be valid, the parties must exchange promises that represent legal obligations” and that “[a] contract is unenforceable as illusory when one of the parties has the unfettered or arbitrary right to modify or terminate the agreement or assumes no obligations thereunder.” (Id. at p. 385.) However, the Court of Appeal held that arbitration agreements that contain unilateral modification provisions by an employer are not illusory because “the implied covenant of good faith and fair dealing or generalized fairness concerns limit the contracting party's authority to modify contractual terms.” (Id. at p. 389.) The court held succinctly that “the employer's right to change the Employee Handbook does not render the arbitration agreement illusory.” (Id. at p. 390.)
3. Class Action Waiver
Patrick argues that the Arbitration Agreement’s class action waiver renders the agreement unconscionable. (Opposition at pp. 13–14.)
However, under the FAA, both the U.S. Supreme Court and the California Supreme Court recognize that class action waivers do not render an arbitration agreement unconscionable. (See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333; Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348.) As noted above, the court has taken judicial notice of the fact that Del Frisco’s operates in multiple states, and the Arbitration Agreement specifically states that the FAA applies.
Additionally, the court notes that Patrick has not filed any class action causes of action. The class action waiver provision does not render the Arbitration Agreement substantive unconscionable.
4. Cost Shifting

Patrick argues that the Arbitration Agreement’s provision providing that a party must pay the attorneys’ fees of a party who moves to compel arbitration is unconscionable because it violates FEHA’s requirement that a prevailing defendant employer only recovers attorneys’ fees if the employee’s claim is frivolous, unreasonable or groundless. (Opposition at p. 14.)
Notably, the arbitration agreement provides that “[t]he cost of arbitration fees shall be paid by Del Frisco’s,” with the limited exception if the employee makes the initial demand for arbitration, in which case the employee has to pay the lower of the AAA initial filing fee or the filing fee for filing a complaint in federal court. (Martin Decl. Ex. C [Arbitration Agreement], at p. 4.)
However, the Arbitration Agreement also provides that “if any party is required to file a lawsuit to compel arbitration pursuant to this Agreement, or defend against a lawsuit filed in court contrary to this Agreement’s mandatory arbitration provision, such party, if successful, shall be entitled to recover his, her or its reasonable costs and attorneys’ fees incurred in such an action, including costs and attorneys’ fees incurred in any appeal.” (Arbitration Agreement at p. 5.) It is this provision that Patrick claims is substantively unconscionable.
Patrick is correct that the court in Trivedi v. Curexo Technology Corp. (“Trivendi”) (2010) 189 Cal.App.4th 387, 394, disapproved of on other grounds by Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, held that an arbitration agreement that “included a mandatory attorney fee and cost provision in favor of the prevailing party was unconscionable because it placed [employee plaintiff] at greater risk than if he retained the right to bring his FEHA claims in court.” “‘[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.’ [Citation.” (Id. at p. 395.)
Here, however, the provision cited to by Patrick only provides that the successful party on a motion to compel arbitration would be entitled to recover attorneys’ fees in “such an action,” i.e., the fees incurred in the lawsuit, not the fees in the later arbitration. The cited provision does not address attorneys’ fees for a prevailing party in FEHA actions, but only for a prevailing party in a motion to compel arbitration.
The court in Armendariz found that an arbitration agreement is valid if it “does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum.”’” (Armendariz (2000) 24 Cal.4th 83, 102.) In Sanchez, the court found an auto arbitration contract not substantively unconscionable where the employer advanced only $2,500 of arbitration costs. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th 899 at pp. 917–918.)
Courts have held that “‘when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court’” (Fittante v. Palm Springs Motors, Inc. (“Fittante”) (2003) 105 Cal.App.4th 708, 718–719.) However, the court in Fittante also held that “in cases where an employer requires an employee to arbitrate his or her claims, including statutory claims, the agreement must be interpreted (in the absence of any express terms to the contrary) to require the employer to pay any unusual costs associated with arbitration, such as the arbitrator's fees.” (Id. at p. 719.)
Patrick has cited to no case law holding that an arbitration agreement that requires the payment of attorneys’ fees for a party who is forced to bring a successful motion to compel arbitration is unconscionable. This provision does not affect the right to attorneys’ fees under a FEHA cause of action, nor would these fees be required as a condition of access to the arbitration forum. Patrick could have consented to arbitration and avoided any additional attorneys’ fees.
Regardless, Del Frisco’s has agreed to not seek attorneys’ fees under this provision. (Reply at p. 11, fn. 10.) The inclusion of this provision is not unconscionable, and Del Frisco’s statement that it is not seeking attorneys’ fees under this provision renders Patrick’s argument moot.
Because no portion of the Receipt or Arbitration Agreement is substantively unconscionable, and because the low level of procedural unconscionability alone is insufficient for this court to refuse to enforce an arbitration agreement, the Motion to Compel Arbitration is GRANTED.
Defendants to give notice.

DATED: January 20, 2017 ________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court