1 HON. KIRK H. NAKAMURA Superior Court of Orange County, California Undergraduate: UC, Irvine, 1977 Law School: Duke, 1980 Admitted to Practice: 1980 Appointed to the Bench: 2001 Appointed by: Gray Davis, Jr., Democrat Career as an Attorney Associate, Shield & Smith, Los Angeles, California, Associate/Partner, Beam Di Caro, et al & Successors firms, Santa Ana, California, (Specialties in practice: public entity law, insurance law, and construction law) Planning Commissioner, Yorba Linda, California, Relevant Organizational Affiliations Member: William P. Gray/Lex Legion Inn of Court, Legislative Relations Committee, California Judges Association, Board Member, California Asian American Judges Association, Board Member, ABTL, Former Member: Duke Alumni Interview Advisory Committee, Board of Directors, Orange County Bar Association, , (Chair, Bias Grievance Committee, , Co-chair, ADR Committee, 1998, Judiciary Committee, ) President, Orange County Japanese American Lawyers Association, President, Orange County Asian American Bar Association, Warren J. Ferguson Inn of Court, 2000 Judicial Appointments Selection Committee, Orange County, California, (for former Gov. Arnold Schwarzenegger),
2 Other Information Publications: The Classification of Personal Injury Damages Under California Community Property Law: Proposal for Application and Reform, 14 Pac. L.J. 973, 1983 Between Cumis and Native Sum: The Right to Cumis Counsel Under Civil Code Section 2860, 37 Orange County Lawyer, #7, July 1995 Krusing for a Bruising: Is Total Express Indemnity Dead? 38 Orange County Lawyer, #5, p.34, May1996 The New and Expanded Bias Grievance Procedure, 39 Orange County Lawyer, #10, p.41, October 1997 Expect More From The Courts Temporary Judges: The Court Does, 49 Orange County Lawyer, #8, p.43, August 2007 Courtroom Year 2010: Summary Judgment, (The Benches Short Story, March/April 2006 Better Late Than Never! The New Court Approved Mediation Program Launches, 51 Orange County Lawyer, #2, p.34, February 2009 Lectures: Teaching/Lectures/Panelist Keynote Speaker, Orange County Japanese American Lawyers Association, 2002 Speaker, Personal Injury 101, Orange County Bar Association, 2011 Speaker, Judicial Forum on Trial Practice, 2011 Teaching; Adjunct Professor, Construction Law, Chapman Law School, 2004 Temporary Judge Training, Elimination of Bias, Bench Demeanor, 2007, Ethics, 2010 Admissions: 9 th Circuit Court of Appeals Federal District Court of California, Central District
3 Superior Court of the State of California Page 1 of 10 9/13/2013 TENTATIVE RULINGS FOR DEPARTMENT C-15 Honorable Kirk H. Nakamura September 12, 2013 Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling. The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible. The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657) If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court s signature, if appropriate under CRC Please be advised that the Orange County Superior Court still provides court reporters for civil law and motion matters. # me Tentative 1 Admiral Ins. Co. v. Council for Educational Travel USA 2 The Retail Property Trust v. Orange County People for Animals Motion for Bifurcation: OFF CALENDAR Motion for Release of Appeals Bonds: GRANT Absent any written objection before or oral objection at the hearing on by defendants OCPA and/or Patel, plaintiff The Retail Property Trust s motion to release appeals bond is GRANTED. See, Civil Code (b) and (a). Defendants OCPA and Patel have each filed an Acknowledgment of Satisfaction of Judgment in Full. Thus, absent any objection by defendants OCPA or Patel, the purpose of the appeals bond has been satisfied. Moving party to give notice to all parties that have appeared in this civil action. 3 Magpiong v. Sassco, Inc. Motion to Quash Discovery Subpena: CONTINUED to 9/26/13 4 Simone v. Loyd Motion to Quash Deposition Subpena: OFF CALENDAR 5 Lorenzetti v. Meer Motions to Deem Facts Admitted: OFF CALENDAR Stipulation taking motion off calendar has been signed by the court.
4 Superior Court of the State of California Page 2 of 10 9/13/ Levy v. Kallman Motion to Compel Answers to Form Interrogatories: MOOT Motion to Deem Facts Admitted: DENY Request for Sanctions: GRANT Since Plaintiff has responded to the Form Interrogatories, the Motion to Compel is MOOT. On May 23, 2013, Plaintiff timely served objections to most of the Requests for Admissions. Objections to discovery are not required to be verified. Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, Prior to the Motion to Deem the Requests Admitted, Plaintiff served his verification. This response is substantial compliance for the non-objections. Therefore, the motion is DENIED. Defendant is still entitled to sanctions for both motions. Within fifteen (15) days, Plaintiff and his attorney shall pay total sanctions in the sum of $ ($ per hour x 3 hours.) 7 Lopez v. New Albertsons Motions to Compel Further Responses to (1) Special Interrogatories, (2) Form Interrogatories and (3) Request for Production of Documents: GRANT ALL Within fifteen (15) days, Plaintiff shall respond without objection to this discovery. Within fifteen (15) days, Plaintiff and his attorney shall pay sanctions in the total sum of $ [($ per hour x 4 hours) + ($60.00 x 3)]. 8 Shahbazi v. Kabir Motion to Compel Further Responses to Request to Produce: See below Plaintiff s motion is OFF CALENDAR (moot) insofar as it seeks to compel a further response to requests for production. As supplemental responses have been provided, the motion to compel a further response is moot. It is GRANTED as to sanctions. Sanctions are $2450 against Kabir Investment Corp. [KIC] and attorney Alex Asil Mashiri if there is an appearance; if no appearance is required, sanctions are $1750. Plaintiff is to give notice; notice is to indicate whether or not there has been an appearance.
5 Superior Court of the State of California Page 3 of 10 9/13/2013 KIC cites no authority that notice of motion has to state specifically what items are at issue. The separate statement provides such notice. Sanctions are granted because Defendant improperly made this motion necessary. The requests at issue are identical to those that Mr. Kabir was ordered to respond to on 7/18. As there is no claim that KIC has any additional documents, it was bad faith to continue to refuse to supplement its responses thereafter. The Court acknowledges Plaintiff s contention that KICs supplemental responses are false. However, this motion is not the procedure to use to challenge them; it only concerns the 6/21/13 response. 9 Vo v. Huckabee Demurrer to Second Amended Complaint: See below The demurrer by defendants Teva, Teva USA and Ron Davenport is OVERRULED in part and otherwise MOOT. The demurrer by defendant Davenport to plaintiff Vo s fifth cause of action for slander is MOOT as the parties agree plaintiff Vo has agreed to dismiss this cause of action pursuant to an agreement. As to plaintiff Vo s third cause of action for wrongful discharge in violation of public policy, plaintiff Vo has now alleged sufficient facts as to unsafe work practices to state a cause of action for violation of Labor Code 6301(b). (See, SAC, 87, 92, 106 and 107 in particular.) The Sequoia case is distinguishable because plaintiff in that case was relying on Proposition 103. The Sequoia court then explained that: In this case, the employer is accused of violating public policy by attempting to persuade plaintiff to inflate case reserves. Unless plaintiff can point to a specific statement in Proposition 103 or another statute which restricts the amount of reserves an insurer may set aside for the anticipated cost of a pending claim, no public policy can be inferred. Id., at In contrast, plaintiff Vo is relying on Labor Code 6301(b), which prohibits retaliation for reporting unsafe work conditions and unsafe work practices, and plaintiff has set forth such allegations including reporting purported violation of F.D.A. regulations to management at defendants Teva and Teva USA. The Teva defendants have not cited a case where a plaintiff must set forth a sufficient statute like Labor Code 6301(b), as well as set forth facts as to the specific underlying safety regulations purportedly violated. A violation of Labor Code 6301(b) will support a cause of action for wrongful termination in violation of public policy. See, Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 303 to 304. Also, such reports to an employer are sufficient, and do not require oral or written reports to a governmental agency. See, Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4 th 1418, As to Schulthies, the court explained that: Plaintiff does not allege that when he wrote the he believed that Defendant AMTRAK was violating a statute or regulation or that he believed the to disclose a violation. The itself is concerned with efficiency, monetary waste and disruption of employees' families and cannot reasonably be interpreted to disclose a violation of a statute or regulation. Id., at As to Ferretti, the court was not addressing whether facts as to unsafe work matters had been pled, which they have been in this case. Also, the Ferretti court had explained that plaintiff in that case had pled a sufficient claim for wrongful termination for violation of public policy based on the alleged violation of Labor Code (c).
6 Superior Court of the State of California Page 4 of 10 9/13/2013 Finally, the Teva defendants have not specified sufficiently how plaintiff Vo s third cause of action for wrongful termination in violation of public policy in his second amended complaint is so uncertain, and where such uncertainty exist, such that the Teva defendants cannot respond. See, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. Thus the Teva defendants special demurrer to plaintiff Vo s third cause of action for wrongful termination in violation of public policy in plaintiff s second amended complaint is overruled. The Teva defendants are ordered to give notice and file an answer to plaintiff Vo s second amended complaint within 15 days. 10 Bagheri v. OC Dental Specialists Demurrer to Second Amended Complaint: OFF CALENDAR 11 Brill v. Essential Home Health Care Demurrer to First Amended Complaint: See below The Demurrer to the First Cause of Action for Elder & Dependent Adult Financial Abuse is OVERRULED. Plaintiff properly alleged vicarious liability. Plaintiff alleged specific facts that occurred. On many occasions, Elma took Plaintiff to the bank and told her to withdraw the funds. The Complaint alleged that Elma was a care giver that was acting in the course and scope of her employment. (Page 3, line 21). It was foreseeable to Novales and EHHC... Mrs. Brill became dependent upon Elma for assistance, advice and counsel. (Page 4, lines 6-10). The Supreme Court case of Lisa M. involved a summary judgment motion, not a demurrer. On a Demurrer, the court cannot evaluate whether Defendants should be held vicariously liable. The Complaint is not required attach or quote to the contract between Plaintiff and moving parties and the contract between the moving parties and Elam. Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459 refers to Demurrer to a Breach of Contract (See Reply, page 2). The Demurrer to the Second Cause of Action for Elder Abuse-Neglect is SUSTAINED with fifteen (15) days leave to amend. [N]eglect as a form of abuse under the Elder Abuse Act refers to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults... Carter v. Prime Healthcare Paradise Valley
7 Superior Court of the State of California Page 5 of 10 9/13/2013 LLC (2011) 198 Cal.App.4th 396, The term neglect does not encompass financial abuse. The Demurrer to the Third Cause of Action for Breach of Fiduciary Duties is OVERRULED. Since Elma was Plaintiff s agent, she was her fiduciary. An agent is a fiduciary. Michelson v. Hamada (1994) 29 Cal.App.4th 1566, (Emphasis original). Moving parties were alleged to be vicarious liable for Elma s actions. The Demurrer to the Fourth Cause of Action for Fraud is SUSTAINED with fifteen (15) days leave to amend. Although the cause of action states that Defendants manipulated and deceived Plaintiff, the Complaint does not state that Defendant misrepresented what would happen to the funds withdrawn from the Bank. Plaintiff has not specifically alleged misrepresentation. In California, fraud must be pled specifically; general and conclusory allegations do not suffice.... This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.' Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. The Demurrer to the Fifth Cause of Action for Conversion is OVERRULED. Money can be the subject of an action for conversion if a specific sum capable of identification is involved. Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, In this case, the money was the $90,000 withdrawn from Plaintiff s bank account. The Demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED. Plaintiff was 86 years old with dementia and/or Alzheimer s disease. When a person in a position of power injures a person susceptible to mental distress, the conduct is sufficiently outrageous. Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff's interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1122 (internal citation omitted.) The Demurrer to the Seventh Cause of Action for Negligent Infliction of Emotional Distress is OVERRULED. Defendants concede that a breach of duty arising out of pre-existing relationship would support this cause of action. [D]amages for severe emotional distress may be recovered when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a special relationship between the two. Christensen v. Superior Court (1991) 54 Cal.3d 868, 891. Elma had a relationship with Plaintiff prior to the embezzlement. The Demurrer to the Eighth Cause of Action for Violation of Unfair Competition Law is SUSTAINED with fifteen (15) days leave to amend. 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 California, Inc. (1993) 14 Cal.App.4th
8 Superior Court of the State of California Page 6 of 10 9/13/ , 619. Plaintiff has not specifically stated how Defendant s conduct was unlawful, unfair or fraudulent. The Motion to Strike is GRANTED with fifteen (15) days leave to amend regarding punitive damages, treble damages and attorney fees. The remaining items sought to be stricken are DENIED. Plaintiff has not complied with the requirements of Civil Code 3294 (b) to hold an employer liable for punitive damages. Under Civil Code 3345 (a), Plaintiff has not properly alleged unfair or deceptive acts or practices or unfair methods of competition. Pursuant to C.C.P , Plaintiff has not alleged a basis to recovery under the private attorney general theory. 12 Wang v. Tide International USA Demurrer to Complaint: See below The demurrer by defendants Tide USA, Tide Ltd., and Yang to plaintiff Wang s complaint is overruled in part and sustained in part. OVERRULED as to plaintiff Wang s third cause of action for breach of fiduciary duty as to all defendants, and as to defendant Tide USA only in regard to plaintiff Wang s fourth cause of action for involuntary dissolution. As to plaintiff s third cause of action for breach of fiduciary duty, the majority shareholders owe a fiduciary duty to a minority shareholder not to misuse corporate assets and property, which does not have to be brought as a derivative action. See, Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93, 108. Plaintiff Wang has alleged facts that he is a minority shareholder of defendant Tide USA and facts as to misuse of corporate assets by all defendants that is sufficient at this pleading stage. As to plaintiff s fourth cause of action for involuntary corporate dissolution, while plaintiff Wang is not a 33% or more shareholder to support involuntary dissolution pursuant to Corporations Code 1800(b)(2), plaintiff Wang has alleged sufficient facts at this pleading stage to support a claim for involuntary corporate dissolution pursuant to Corporations Code 1800(b)(4) or 1800(b)(5). In particular, involuntary dissolution pursuant to Corporations Code 1800(b)(5) cannot be resolved based on the face of the complaint and items subject to judicial notice. SUSTAINED as to plaintiff Wang s first cause of action for wrongful termination in violation of public policy, second cause of action for an accounting, and fourth cause of action for involuntary dissolution as to defendants Yang and Tide Ltd. As to plaintiff s first cause of action for wrongful termination in violation of public policy against defendants Tide Ltd. and Yang, plaintiff has not alleged that either of these defendants are his employer as required, and plaintiff Wang has not filed any opposition explaining that he can plead such facts to state such a cause of action. See, Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4 th 563, 575 and Hendy v. Losse (1991) 54 Cal.3d 723, 742.
9 Superior Court of the State of California Page 7 of 10 9/13/2013 As to plaintiff s second cause of action for an accounting, defendant Yang is not a corporation maintaining corporate financial records, and as to defendant Tide Ltd., plaintiff has not alleged he is a shareholder to support inspection of any records as to defendant Tide Ltd. As to defendants Yang and Tide Ltd., plaintiff is not granted leave to amend in regard to his second cause of action for an accounting. As to defendant Tide USA, plaintiff has alleged he is a 20% shareholder of this corporation, but plaintiff has not alleged facts that he submitted a written application to inspect the corporate books and records of defendant Tide USA. Plaintiff is granted leave to amend as to his second cause of action for accounting as to defendant Tide USA. As to plaintiff s fourth cause of action for involuntary dissolution, defendant Yang is not a corporation that can be dissolved. As to defendant Tide Ltd., plaintiff has not alleged that he is a shareholder in Tide Ltd. to potentially be able to bring a cause of action for involuntary dissolution of this corporation. Plaintiff has not filed any opposition or otherwise stated additional facts that he can plead to state a proper cause of action for involuntary dissolution against defendant Yang and/or defendant Tide Ltd. Thus the demurrer by defendants Yang and Tide Ltd. to plaintiff Wang s fourth cause of action for involuntary dissolution is sustained without leave to amend. 13 Lee v. Ybarra Motion for Summary Judgment/Adjudication: GRANT Defendants have me their initial burden by presenting evidence that Mr. Ybarra did not cause Plaintiff s injuries, i.e., that he did not run a red light. Plaintiff has not presented any evidence to the contrary. Plaintiff has admitted that he does not recall whether he entered the intersection on a green or red light. [Response to Undisputed Fact 10] In his response to Interrogatory #14.1, executed on 12/13/12, Plaintiff contended only that Defendant had run a red light. This response was executed nearly a month after Mr. Ybarra s deposition, the deposition that Plaintiff now claims creates a question of fact. A party cannot raise a question of fact on summary judgment by a declaration that contradicts his prior testimony. Wilkins v National Broadcasting Co Inc (1999) 71 Cal.App.4th 1066, The Court holds that the same is true about changing interrogatory responses to attempt to create new issues. Furthermore, because Defendants have met their initial burden, the burden shifts to Plaintiff to present evidence sufficient to meet his burden of proof at trial. Aguilar v. Atlantic Richfield Co. (2000) 25 Cal.4th 826, This burden cannot be met unless the inferences raised by the opposing evidence would be sufficient to meet this burden of proof; the mere existence of conflicting inferences will not defeat summary judgment. Habitat Trust for Wildlife Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, There is no evidence whatsoever that Defendant s speed or 2-3 second inattention contributed to the cause of the accident or to Plaintiff s injuries. There is no evidence that if Mr. Ybarra had been traveling a few miles per hour slower or had looked up a second or two earlier he would have seen that Plaintiff was about to run a red light and would have been able to stop in time or that Plaintiff s injuries would have been less severe. There is no
10 Superior Court of the State of California Page 8 of 10 9/13/2013 declaration from an accident reconstructionist or a medical expert. Plaintiff his not met his burden under Aguilar and Habitat Trust. Defendant is to give notice and is to lodge and serve a proposed judgment of dismissal. 14 Sutton v. Seal Beach Swim Club Motion for Summary Judgment/Adjudication: DENY The court GRANTS defendant unopposed request that the court take judicial notice of (1) the Complaint, (2) the Court s 1/17/13 Minute Order (sustaining demurrer), (3) defendant s Answer to the Complaint, and (4) a copy of Corp. Code, Defendant s Motion for Summary Judgment is DENIED. Defendant failed to meet its burden on summary judgment. Pursuant to Section 5341, no membership in a public benefit corporation may be terminated or suspended except in good faith and through fair and reasonable procedures. (Corp. Code, 5341(b).) A procedure is statutorily considered fair and reasonable when (1) it has been set forth in the articles/bylaws, (2) It provides the giving of 15 days prior notice of the expulsion, suspension or termination and the reasons therefor, and (3) an opportunity for the member to be heard, orally or in writing, was given at least five days before the effective date of the expulsion/suspension/termination. (Corp. Code, 5341(c).) Full compliance with the above is not always required however as a court may also find other procedures to be fair and reasonable when the full circumstances of the suspension, termination, or expulsion are considered. (Corp. Code, 5341(b).) In support of its motion, among other things, defendant shows that Mr. Sutton received defendant s 1/17/12 letter expelling the Suttons. But defendant fails to show when the letter was actually sent. The evidence proffered only shows that it may have been received by Mr. Sutton on 1/21/12. (See, e.g., Sutton Depo. at 160:4-9, 161:22-162:16, 163:4-8; 163:11-14.) To be considered statutorily fair and reasonable under Section 5341(c), written notice must have been given by 1/17/12. Defendant, on Reply, appears to concede that the notice given was a few days short. (See Reply Br. at 4:9-11.) In an effort to try and overcome this apparent failing, defendant argues that there was no prejudice. But there is no exception in Section 5341(c) for lack of prejudice. Moreover, defendant failed to show that there was a lack of prejudice as a matter of law in its moving papers. And although defendant also attempts to also argue that the court should nonetheless find that procedure was fair and reasonable under the full circumstances of the suspension, termination, or expulsion are considered (Corp. Code, 5341(b)), defendant fails to present sufficient evidence for such a finding. Defendant s Separate Statement is comprised primarily of what written communications occurred and when they occurred. It fails to mention any of the purported matters considered by either the Board or the Expulsion Committee in deciding to terminate plaintiffs membership. Nor does defendant proffer any declaration from any member of the Board regarding the reasons for the expulsion/suspension. Moreover, the notice provided to the Suttons of the reasons for the expulsion/suspension in the 1/17/12 letter appears to be lacking. The only reason provided in the letter was that the Board felt Mr. Sutton s challenge to the election was based solely on personal reasons and does not have the best interests of the SEAL Swim Team organization as a whole. (Sutton Depo., Exh. B.) Nowhere in the notice are prior incidents mentioned or that Mr. Sutton has a history of inappropriate conduct. As Mr. Sutton was provided only with an opportunity to respond in writing, as opposed to
11 Superior Court of the State of California Page 9 of 10 9/13/2013 present oral argument or witnesses before the Special Member Expulsion Committee, Mr. Suttons response appears to have been directed solely to his 1/16/12 challenge letter. It is at least a question of fact as to whether he was given a fair opportunity to address the alleged prior incidents or history of inappropriate conduct. (Sutton Depo., Exh. I.) Finally, the court admonishes plaintiffs counsel for citing to an unpublished opinion i.e., Aluisi v. Fort Washington Golf & Country Club (1995) 36 Cal.App.4th 799, 42 Cal.Rptr.2d 761. The California Rules of Court expressly provides that such must not be cited or relied on by a court or a party. (Cal. Rules of Court, rule (a).) Plaintiff to give notice. 15 Earl v. Arias Motion for Summary Judgment/Adjudication: DENY Plaintiff s Objection to defendant s Request for Judicial Notice is OVERRULED. Defendant s Request for Judicial Notice is GRANTED. Plaintiff s Request for Judicial Notice is GRANTED. Defendant s Motion for Summary Judgment is DENIED. Defendant has not met his burden of establishing each element of the affirmative defense of judicial estoppel. CCP 437c(p)(2) Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4 th 284 It has not established that the exclusion of this case from plaintiff s bankruptcy petition and subsequent amendments was not due to ignorance or mistake or was due to fraud. MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Col, Inc. (2005) 36 Cal.4 th 412 Even if defendant had met his burden, plaintiff has established a triable issue of material fact. Defendant s Separate Statement of Undisputed Material Facts Nos. 4, 5, 6, 7, 9, 12, 13 and evidence offered in dispute. Plaintiff s Motion for Sanctions under CCP is DENIED. Defendant s request for attorney s fees and costs is DENIED. 16 Doe v. Abdallah Motion for New Trial: OFF CALENDAR Although Defendant filed notice of intent to move for new trial, no such motion was ever filed. Motion for Judgment Notwithstanding the Verdict: DENY There was substantial evidence at trial that Plaintiff suffered mental and emotional injury as a result of her rape by the Defendant. That such injury occurred does not require any evidence other than Plaintiff s testimony. Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895. Plaintiff is to give notice.
12 Superior Court of the State of California Page 10 of 10 9/13/
13 Superior Court of the State of California Page 1 of 7 9/5/2013 TENTATIVE RULINGS FOR DEPARTMENT C-15 Honorable Kirk H. Nakamura September 5, 2013 Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling. The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible. The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657) If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court s signature, if appropriate under CRC Please be advised that the Orange County Superior Court still provides court reporters for civil law and motion matters. # me Tentative 1 Simone v. Loyd Motion to Quash Subpoena: GRANT The motion to quash is GRANTED. The subpoenas are quashed. Plaintiffs are awarded sanctions of $1000 against Defendants and their counsel of record, jointly and severally. Plaintiffs are to give notice. The subpoenas were served after the discovery cutoff. The Court takes judicial notice of the 1/15/13, 3/11/13, 5/9/13, and 7/22 stipulations and orders. The extensions were for specific reasons, none of which encompass the subject subpoenas. There was no order reopening discovery in general. Therefore, the discovery is barred by CCP Defendants have not filed a motion to reopen discovery under Furthermore, because the purpose of the discovery is to permit Defendants expert to update his opinions, trial will either have to be continued again or Plaintiffs will be prejudiced by not having the information needed to anticipate and address the revised opinion in trial. CCP (b)(3). Defendants have not claimed that this motion is untimely under CCP and have therefore waived any such claim. Sanctions are awarded for pursuing an unauthorized form of discovery without leave of Court.
14 Superior Court of the State of California Page 2 of 7 9/5/ Arcila v. Neumann Motion for Reclassification: DENY The Neumann defendants motion to reclassify plaintiff Arcila s unlimited civil action as a limited civil action is DENIED. First, as a motion to reclassify, pursuant to C.C.P (a), the Neumann defendants motion is untimely as it was not filed within their time to plead. Second, as a motion to reclassify, pursuant to C.C.P (b), the Neumann defendants have not demonstrated good cause for bringing this motion to reclassify to be heard less than a month before the continued trial date of Third, the Neumann defendants have not carried their burden of demonstrating that plaintiff Arcila s recovery will necessarily be less than $25, to support reclassification of this civil action as a limited civil action. See, Walker v. Superior Court (1991) 53 Cal.3d 257, 269. Defendants have not established that an award over $25, is virtually unobtainable by plaintiff Arcila. Moving party to give notice 3 In re ADX Components, Inc. The petition for a decree of dissolution of ADX Components, Inc. and related relief: DENY Unless Petitioner can present evidence of compliance with the Court s 5/30/13 order for publication this motion is DENIED. Petitioner was ordered to publish notice for three consecutive weeks. However, it has provided proof of publication on 6/13/13 only. Unless proof of publication for three consecutive weeks is filed prior to or at the hearing, this motion will be denied. 4 In Re All World Technologiest The petition for a decree of dissolution of All World Technologies, Inc. and related relief: DENY Unless Petitioner can present evidence of compliance with the Court s 5/30/13 order for publication this motion is DENIED. Petitioner was ordered to publish notice for three consecutive weeks. However, it has provided proof of publication on 6/13/13 only. Unless proof of publication for three consecutive weeks is filed prior to or at the hearing, this motion will be denied. 5 Allied Interstate, Inc. v. Select Trans. Inc. Motions to Compel Further Responses to Form Interrogatory and Requests for Admission: MOOT Moving party concedes that Plaintiff provided satisfactory Supplemental Responses. Motion to Compel Further Responses to Demand for Production Nos. 5, 6, 7 & 11: GRANT Moving party has shown good cause for production. Within ten (10) days, Plaintiff shall produce without objection the requested documents. The Requests for Sanctions are DENIED. Defendant failed to engage in a meaningful meet and confer effort. Contact was not made with opposing counsel. The motions were served within 24 hours after receipt of the responses.
15 Superior Court of the State of California Page 3 of 7 9/5/ California Real Estate Resources, Inc. v. UNT Atia Co. II Demurrer to Complaint: See below The demurrer to the 1st cause of action for conversion is SUSTAINED without leave to amend. The demurrer to the 2d through 8th causes of action is OVERRULED. Defendant has 20 days to answer. Plaintiff is to give notice. 1st cause of action: Conversion of money is only actionable when there is a specified sum that the Defendant holds for the benefit of the Plaintiff or that has been misappropriated or commingled. PCO, Inc. v. Christensen, Miller, Fink, Glaser, Weil & Shapiro (2007) 150 Cal.App.4th 384, 395. Haigler v. Donnelly (1941) 18 Cal.2d 674 and Fischer v. Machado (1996) 50 Cal.App.4th 1069 both involved money received by the defendants that should have gone to the plaintiffs. Software Design & Application, Ltd v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472 was decided on wholly different grounds, i.e., the fact that the bank that held the funds had not been told that it was a bailee for the plaintiff. In this case, the funds were received by Defendant as the result of a transaction that had nothing to do with the Plaintiff. Furthermore, Plaintiff itself does not know how much it is entitled to, as demonstrated by the common counts for three different amounts and the opposition to the demurrer claiming two different amounts. Remaining causes of action (2 nd through 8 th causes of action): A general partner is liable for partnership debts and can be joined in an action against the partnership, and a judgment can be entered against him. Corp. Code (a) and Corp. Code (a) & (b). All but one of the conversion cases cited by Defendant relate to liability for corporate debts. The only one involving a partner, Olivet v. Frischling (1980) 104 Cal.App.3d 831, concerned tort liability, not liability for partnership debts. Plaintiff is not basing its claim against Mr. Ting on a conspiracy theory. The only challenge to the common counts is that the contract causes of action fail. 7 Spencer Recovery Centers, Inc. v. Cigna Healthcare of CA. Demurrer to Complaint: See below The demurrer to all causes of action is SUSTAINED with 20 days leave to amend. 1st cause of action: Breach of contract. Plaintiff has not pled sufficient facts to give Defendant notice of the claims it has to defend. However, the court finds that it would be burdensome to require Plaintiff to attach all 23 policies and the breached terms of each be identified; this can be determined through discovery. In addition, the Court agrees with Plaintiff that privacy interests of the insureds should be protected. Defendant concedes that it will be sufficient to attach a spreadsheet of the disputed claims with claim numbers, authorization numbers, insurance policy numbers and/or member ID numbers. Plaintiff contends that this information was provided to the Defendant but these should also be included in the pleading.
16 Superior Court of the State of California Page 4 of 7 9/5/2013 2d cause of action: Breach of the implied covenant of good faith and fair dealing. Without a contact claim, this cause of action is defeated also but Plaintiff may be able to plead it. Even though the denial of coverage is a breach of contract, it can also expose an insurer to bad faith liability with tort damages if it is unreasonable. Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, However, Plaintiff must allege that there was no legitimate dispute regarding coverage, not merely that the denials were unfair. Id. at Also, Plaintiff must clarify whether tort claims were assigned. A copy of a representative assignment should be attached as an exhibit, with identifying information redacted. 3d cause of action: Unfair business practices. Because the underlying causes of action fail, this fails also but it may be possible to amend it. Scripps Clinic v. Superior Court (2009) 108 Cal.App.4th 917, 940, stated that the cause of action must be tethered to a constitutional, statutory or regulatory provision. However, according to a Supreme Court case recently published, this remains an open question in California. Yanting Zhang v. Superior Court (2013) 57 Cal.4th 364, 304 P.3d 163, 174, fn.9. Under Yanting Zhang, common law insurance bad faith claims provide a sufficient basis for an unfair practices claim. 304 P However, as noted above, the bad faith claim is insufficiently pled. 4th cause of action: Fraud. It is unclear if fraud claims were assigned. Plaintiff is correct that under Universal By-Products Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151, the element of intent can be pled in general terms. However, the other elements must be specifically pled. Plaintiff must allege how, when, where, to whom, and by what means the representations were tendered to each of the insureds. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Because Defendant is a corporation, Plaintiff must allege the names of the persons who spoke, their authority to speak, to whom they spoke, what they said/wrote, and when it was said/written. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Also, reliance must be alleged as to each of the insureds. The insureds can be identified by number. Is Plaintiff claiming there were advertisements promising broad coverage and the insureds saw and relied on them? Or is this just another claim that the coverage in the policies wasn t given to these insureds, i.e., merely a breach of contract claim? Is Plaintiff alleging that Defendant had a practice of denying certain specific coverage and therefore the persons who wrote the policies committed fraud? If so, what coverage does it consistently deny? Is it the same for all 23 insureds? These questions should be addressed in an amended pleading. 8 Avitia v. Verizon Wireless Defendant is to give notice. Defendant Airtouch Cellular s Demurrer: OVERRRULED in part and SUSTAINED in part. (See below) OVERRULED as to plaintiff Avitia s third cause of for discrimination based on national origin, fourth cause of action for gender discrimination, and fifth cause of action for retaliation. Plaintiff has presented sufficient evidence that DFEH does not print-out on a DFEH report any party listed as defendant or co-defendant on an administrative report that is submitted electronically and that plaintiff listed Verizon Wireless on his submission as co-defendant. This creates an issue of fact that cannot be resolved by demurrer and judicial notice. Also the named individuals in the administrative report would be known to defendant Airtouch Cellular dba Verizon Wireless as employees of Verizon Wireless. See, Saavedra v. Orange County Consolidated Tranp. Services Agency (4 th Dist. 1992) 11 Cal.App.4 th 824, 826 to 828. The Saavedra court explained that: And so it is here. Winterbottom was the
17 Superior Court of the State of California Page 5 of 7 9/5/2013 only individual identified in the administrative complaint. He was the only person with whom Saavedra dealt. His actions were those of CTSA. He was put on notice and had an opportunity to pursue a voluntary settlement had he so desired. ( Martin v. Fisher, supra, ante, at p. 122.) See, Saavedra, at 827. Relatedly, plaintiff s counsel declared that he listed Verizon Wireless as a co-defendant on plaintiff Avitia s administrative report filed on This is without prejudice to defendant Airtouch Cellular bringing a motion for summary adjudication if it can establish that Verizon Wireless was not named in plaintiff Avitia s report that was submitted to the DFEH on or about SUSTAINED, with leave to amend, as to plaintiff Avitia s seventh cause of action for negligent supervision. Plaintiff s seventh cause of action is pled similar to a cause of action for IIED, not negligent supervision. Plaintiff has not alleged facts constituting negligent supervisory conduct on the part of defendant Airtouch Cellular dba Verizon Wireless in regard to its Verizon Wireless employees. Instead, plaintiff has presently alleged intentional and willful conduct in this cause of action. Defendant Airtouch Cellular s Request for Judicial Notice: Defendant Airtouch Cellular requested that the court take judicial notice of plaintiff Avitia s claim file with the DFEH. Defendant Airtouch Cellular s request that the court take judicial notice of the DFEH claim by plaintiff Avitia is GRANTED, but such notice is limited to this being the administrative complaint and not as to the truth of any claims or contentions set forth therein. See, Evidence Code 452(d) and, Day v. Sharp (1975) 50 Cal.App.3d 904, Reiter v. County of Orange Demurrer to the Complaint: SUSTAINED with twenty (20) days leave to amend. The demurrer is unopposed. The Motion to Strike is MOOT. 10 Ruiz v. Haight, Brown & Bonesteel Demurrer to First Amended Complaint; Motion to Strike; Request for Sanctions: CONTINUED to 2/13/14 The two demurrers and motion for sanctions by defendants Haight, Brown & Bonesteel, et al., are hereby ordered continued to , at 2:00 p.m., in Department C-15 for hearing, because plaintiff Ruiz indicates that he is seeking exoneration relating to various criminal charges that he previously pled no contest to. The court notes that C.C.P. section provides for a different statutes of limitations when a party achieves a post-conviction exoneration where plaintiff has the burden of proving factual innocence. As to plaintiff Ruiz, defendants contend that his claim for legal malpractice and associated claims are barred because he cannot establish factual innocence. Plaintiff Ruiz is ordered to submit a supplemental brief 9 court days before the continued hearing date setting forth any exoneration of the various criminal charges that he has previously pled no contest to. Defendant Haight,
18 Superior Court of the State of California Page 6 of 7 9/5/2013 Brown & Bonesteel, et al., can file a supplemental brief on the issue of exoneration and its effect, or lack thereof, on the statute of limitations 5 court days before the continued hearing date. Moving parties to give notice. 11 Franco v. Chen Motion to Strike First Amended Complaint: GRANT The First Amended Complaint did not correct the defect in the pleadings, but merely repeated the prior allegations of Paragraphs Nos. 21 & 22 in the new Paragraphs Nos. 30 & 31. The pleading is still conclusory and without factual support. Plaintiff filed no Opposition to the Motion to Strike. Within twenty (20) days, Plaintiff shall file a Second Amended Complaint without Paragraphs 13, 21, 22, 30 & 31 and Prayer No. 2 for Punitive Damages. Defendant shall file an Answer within twenty (20) days
19 Superior Court of the State of California Page 7 of 7 9/5/2013
20 TENTATIVE RULINGS FOR DEPARTMENT C-15 Honorable Kirk H. Nakamura August 29, 2013 Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling. The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible. The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657) If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court s signature, if appropriate under CRC Please be advised that the Orange County Superior Court still provides court reporters for civil law and motion matters. 2 Drinnenberg v. Olsen Motion for Leave to File Cross-complaint: GRANT Defendant Laguna Village s unopposed motion for leave to file a crosscomplaint is GRANTED. See, C.C.P (c), and Foot s Transfer & Storage Co., Ltd. v. Superior Court (1980) 114 Cal.App.3d 897. No prejudice is shown as trial is not until and defendant Laguna Village is only seeking to assert cross-claims for indemnity and contribution against other co-defendants in this civil action. Defendant Laguna Village is ordered to e- file and serve its cross-complaint within 10 days. 3 Levy v. Kallman The Demurrer to Amended Complaint: See below The Demurrer of all Defendants to the First Cause of Action for Fraud is SUSTAINED with 20 days leave to amend. Plaintiff must plead the allegations of fraud with specificity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. The court is particularly concerned with the allegation that the representations are not limited, i.e. the phrase Including but not limited to on Page 4, line 23 of the amended complaint. Plaintiff must plead who made what specific misrepresentation at what time. The representations must be limited so that defendant need not have to guess at what is being charged. The Demurrer of all Defendants to the Second (Negligence) Sixth (Breach of Fiduciary Duty) Eighth (Breach of Contract) and Ninth (Rescission) are OVERRULED. Plaintiff has adequately alleged these causes of action. The Demurrer of all Defendants to the Third, Fourth, Fifth and Seventh
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