Hon. Luis A. Rodriguez

Transcription

1 Hon. Luis A. Rodriguez Orange County Superior Court Born: 1954 Undergraduate: UCSD Law School: Boalt Hall Admitted to Practice: 1983 Succeeded to the Bench: 1998 Succeeded by: Prop 220 Career as an Attorney Private practice, San Diego, CA, Private practice, Los Angeles, CA, Deputy City Attorney, Santa Ana, CA, Senior Assistant City Attorney, Orange, CA, Relevant Organizational Affiliations Member: Advisory Board, Orange County Bar Foundation (1995 ) Orange County Peer Court council (1998 ) Judicial Council of California Access and Fairness Advisory Committee (2006 ) Orange County Superior Court Grand Jury Selection Committee (present) American Judges Association Banyard Inns of Court California Judges Association California Latino Judges Association Latino Peace Officers Association National Juvenile and Family Judges Association National Hispanic Bar Association Orange County Bar Association Former Member: California City Attorneys Association ( ) National Association of Hispanic Appointed and Elected Officials ( ) Board of Trustees, Orange County Bar Foundation ( ) Orange County Superior Court Chair, Orange County Municipal and Superior Court Technology Coordination Committee (1997)

2 Orange County Superior Court Technology Committee ( ) CJER Executive Planning Committee, CJSP Criminal Law Institute (1999) Judicial Council of California Criminal Law Advisory Committee ( ) Orange County Superior Court Countywide Security Committee ( ) Orange County Superior Court Community Outreach Committee (2001) Judicial Council of California Court Security Curriculum Development Committee Judicial Council of California Judicial Education and Research Science and Law Education Committee ( ) Judicial Council of California Judicial Task Force for Criminal Justice Collaboration on Mental Health Issues ( ) Judicial Council of California Traffic Advisory Committee and Sub-Committee on Uniform Adjudication of Traffic Education ( ) Judicial Council of California Superior Court Finance Committee Judicial Council of California Superior Court Grand Jury Selection Committee; Judicial Council of California Superior Court Temporary Judges Committee Recipient: Ambassador of Peace Award, Orange County Violence Prevention Coalition, 1998 Award of Appreciation South Orange County Bar Association, 2004 Other Judicial Office Judge, Municipal Court, North Orange County, CA, appointed by Governor Wilson Jan. 4, 1994 (oath Jan. 5, 1994); elected 1994, 2000, and 2006 Teaching/Lectures/Panelist Teaching: Faculty, California Judicial College, Faculty, Bernard-Witkin Judicial College, Faculty, CJER New Judge Orientation, Faculty, State Symposium on Adjudication of Vehicle Code Enforcement, 2000 Faculty, Hispanic Bar Association of Orange County, Unlawful Detainer and Ethics, 1999, 2000 Faculty, CJER Spring Institute for New Assignments, 1999 Faculty, CEB Landlord-Tenant Seminar,

3 Panelist: Brain on Trial, Conference of American Association for Advancement of Science, 2010 Also assisted in developing numerous programs and conferences relating to Judicial Education, notably Neuroscience for Judges, Riverside, CA, 2006 Publications Author: Foreclosure Guide: Pre and Post Trustee Sale (OCSC) Temporary Judges Ethics and Fairness curriculum Juvenile Court Education Rights Project (JCERP) Special Education and Juvenile Law Resource book Search Warrant Guide for Superior Court Judicial Resources Committee Courtroom Security (Witkin Judicial College), DUI Adjudication and Landlord-Tenant Law for various seminars/conferences Contributor: Official Final Report of the Task Force for Criminal Justice Collaboration on Mental Health

4 Hon. Luis A. Rodriguez BIOSKETCH/PROFILE LUIS A. RODRIGUEZ, Judge, Superior Court of California, County of Orange, upon unification (8/10/98 Present); Judge, North Municipal Court, Orange County ( ); Appointed Judge by Governor Pete Wilson and then elected to terms; 1994,2000,2006; and Current term expires Senior Assistant City Attorney, City of Orange ( ); Deputy City Attorney, City of Santa Ana ( ); Private Practice, Los Angeles and San Diego ( ); University of California at Berkeley, Boalt Hall Law School, J.D. (1980); University of California at San Diego, B.A. (1977). Faculty: California Judicial Education & Research ( CJER) New Judge Orientation ( ); California Judicial College ( ); Bernard Witkin Judicial College ( ); State Symposium on Adjudication of Vehicle Code Enforcement (2000); CJER Spring Institute for New Assignments (1999); Attended and Presented : Judicial Education programs relating to Business, Juvenile, and Criminal law; Assisted developing numerous programs, and conferences relating to Judicial Education of which Neuroscience for Judges presented in 2006 in Riverside California was special; Panel presenter at 2010 Conference of American Association for Advancement of Science of program entitled Brain on Trial which was repeated for American Association of Neuroscience. A broadcast of this cutting edge session is available at http: // brain on trial/ Orange County Woman Lawyers Association presented program on Admissibility of Scientific Evidence September 2012 Authored: Assisted with article in CJA newsletter relating to ADA Judicial Guide to Accommodation of disabilities; Contributed to the Official Final Report of the Task Force for Criminal Justice Collaboration on Mental Health. The report is available on the California Courts website at this link: ; Recently produced for use by OCSC a Foreclosure Guide: Pre and Post Trustee Sale; Temporary Judges Ethics and Fairness curriculum, Juvenile Court Education Rights Project (JCERP) Special Education and Juvenile Law Resource Book distributed and used by Orange and other Juvenile Courts in the state, Search warrant guide for Superior Court Judicial Resources Committee, In addition created curriculum for teaching at Witkin Judicial College for the following classes; Courtroom Security, DUI Trials, and assisted in class materials for CEB in the area of Landlord Tenant Law for which was used for CEB presentations; created numerous written presentations and guides used to lecture at OC Hispanic Bar and other bar association events which involved a range of different subject areas of which the more unique were seminars covering Substance Abuse from a legal and scientific perspective, and the Role of Collaborative Courts. Task forces,committees/boards: Appointed to Judicial Council Task Force for Criminal Justice Collaboration on Mental Health Issues ( ); Advisory Committees of the Judicial Council of California; Access and Fairness (2006 present), Criminal Law ( ) California Judicial Education and Research Science and Law Education Committee ( ); Superior Court Finance Committee, Superior Court Grand Jury Selection Committee, Superior Court Temporary judges Committee, Court Security Curriculum Development Committee (2004);Traffic Advisory Committee and Sub Committee on Uniform Adjudication of Traffic Education ( ), CJER Executive Planning Committee, CJSP Criminal Law Institute (1999); Committees of the Orange County Superior Court; Alternate, Executive Committee of the Orange County Superior Court ( ); Superior Court Countywide Security ( ), Court Community Outreach Committee (2001) Technology ( ), Chair, Orange County Municipal and Superior Court Technology

5 Coordination Committee (1997); Court and Bar activities; Advisory Board, Orange County Bar Foundation (1995 Present); Orange County Peer Court Council ( ) Orange County Task Force on Foster Care ( ); Founding Judicial member of Society of Fellows; former member of the Board of Trustees, Orange County Bar Foundation ;Board of Trustees and Community Advisory Council, St. Jude s Hospital ( ); Director, CHOICES Program, Santa Ana Unified School District ( ); Orange County Alcohol Advisory Board (1986) Advisory Director, Hispanic Education Endowment Fund; Board Member, YMCA Community Service Non Profit Corporation; Scholarship Selection Committee; United Way and other non profit community organizations. Current & Past Memberships & Affiliations: California Latino Judges Association, National Juvenile and Family Law Judges Association; Banyard Inns of Court, American Judges Association; California Judges Association; National Hispanic Bar Association; Orange County Bar Association; Latino Peace Officers Association; California City Attorneys Association; Rotary International; National Association of Hispanic Appointed and Elected Officials. Awards: Judge of the Year 2011, Orange County Bar Association Business Litigation Section, 2004 Award and Appreciation, South Orange County Bar Association; 1998 Ambassador of Peace Award, Orange County Violence Prevention Coalition. Current location: 700 Civic Center Drive West, Santa Ana, CA Department C 6 General Civil Panel 12/15/11

6 RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. February 7, 2013 # Case Name Tentative Ferraro v. Ferraro The court DENIES, without prejudice, the motion by Defendants Martin A. Ferraro and Karen M. Fovos for an earnings withholding order against Julie Ferraro, for the judgment-debt of Plaintiff Michael H. Ferraro In general, spouses may be liable for each other s debts, incurred before or during the marriage. (See Fam. Code, 910, subd. (a) [ Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt. ].) Accordingly, a judgment creditor may obtain a court order allowing him or her to invoke the wage garnishment laws against the spouse of the judgment creditor. (Code Civ. Proc., ) Here, despite the general rule regarding community property debts defendants fail to submit any evidence in support of their motion. Accordingly, the court cannot confirm that Julie Ferraro is currently married to Plaintiff, or how much of the judgment debt remains unpaid, if any. Defendants have therefore failed to establish grounds for the requested order Morales v. Noritz America No Tentative Status Conference scheduled

7 Corporation Kennedy v. Ivantis, Inc. Plaintiff s Motion to Quash 7 Medical Subpoenas is GRANTED. The parties for Sanctions are DENIED. However the court notes below that the parties could have resolved these issues without using valuable court resources. Violation of CRC Rule On 02/01/13, the court granted an ex parte application by Plaintiff for leave to file a Separate Statement that is deemed to be untimely, subject to Defendant s right to argue the timeliness issue. Plaintiff then filed her Separate Statement on 02/01/13. Because the Separate Statement was not timely served, the court has discretion to disregard it. However, because the Separate Statement does little more than consolidate the information contained in Exhibit 1 to her moving papers (the 7 subpoenas at issue) and the objections made in her moving brief, the court will exercise its discretion and consider the Separate Statement on its merits despite the technical failure to file a timely separate statement. The court initially points out that although not required ( Code Civ. Proc., , subd. (g) and ),the parties could have avoided this motion by engaging in a meaningful meet and confer. Instead they resort to court intervention for subpoenas that were previously discussed with respect to a nearly identical set of subpoenas on 09/2012, which were subsequently withdrawn. The court fails to see why counsel could not have sent one letter or phone call to resolve what appear to be the patent defects with the instant subpoenas. As to the subpoenas they are directed to plaintiff s medical records which not only intrude on the physician-patient privilege but her privacy rights to them. (See Code Civ. Proc., , subd. (a)(1); Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678.) But plaintiff has put (1) MENTAL CONDITION AT ISSUE, INCLUDING THE SYMPTOMS OF DISTRESS ALLEGEDLY CAUSED BY DEFENDANT and (2) PHYSICAL CONDITION TO THE EXTENT THAT IT RELATES TO HER ABILITY TO WORK POST-TERMINATION. The question is whether the subpoenas issued are narrowly tailored to disclose only the relevant medical information. They are not. First, the document categories appear to seek far more, the court agrees with plaintiff that they use a cookie cutter approach to all the doctors with the exception to Dr. Dang which has its own unique defects. Clearly they are not the product of a careful division of what medical records relate to plaintiff s emotional damages and what invades her medical privacy. For example, Category 12 of the subpoena to Dr. Israel seeks documents which reflect, discuss, mention,

8 comment upon or otherwise refer to any drug prescriptions for KENNEDY, including but not limited to, Klonopin, Alprazolam, Xanax, Prozac, Paxil, Celexa, Zomig, Norco, and/or Ambien. (See Motion, Exh. 1.) This category is not limited in any meaningful way, such as by date of prescription or the reason for which the drug was prescribed. Although Category 13 of the same subpoena suggests that defendant s intent is to seek alternate reasons for Plaintiff s alleged weight gain or other physical or behavioral changes, Category 12 itself is certainly not sufficiently tailored to avoid the physician-patient privilege or plaintiff s right to privacy. Similarly, category 18 of the Subpoena to Dr. Israel seeks documents which reflect, discuss, mention, comment upon or otherwise refer to KENNEDY S knee(s). (See Motion, Exh. 1.) This category is unbounded by time (e.g. After the end of her employment with Defendant) or limited to conditions that would limit Plaintiff s ability to work. Second, the subpoena to Dang seeks some permissible information related to Plaintiff s emotional distress, but the categories described expand beyond that permissible scope to essentially demand all information about Plaintiff s entire medical history. For example, category 27 of the subpoena to Dr. Dang qualifies itself to any and all medical records pertaining to plaintiff other than documents produced to defendant pursuant to an earlier subpoena. This category other than being vague also seeks information on issues not tendered by plaintiff. Moreover, plaintiff s failure to object to a similar request in the prior subpoena to Dr. Dang will not be deemed a waiver of the right to ever object to this subpoena Wood v. Haddad O Grady v. Orange County Jail Food Services Bacha v. Fhima Law Offices of Mark B. Plummer PC v. CuK Blume v. J.P. O/C Defendant, County of Orange erroneously named Orange County Jail Food Services SVCS s unopposed Motion to Quash Service of Summons is GRANTED. When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the facts requisite to an effective service. [Summers v. McClanahan (2006) 140 CA4th 403, 413]. Since there is no opposition, Plaintiff fails to sustain his burden and therefore, motion is granted. Defendant, although apparently served with the Summons and Proof of Service, was not served w/ the Complaint and was not named in the Complaint. Cont to 3-28 O/C Cont to 3/28

9 Morgan Chase McCarty v. Massoudi The court OVERRULES the demurrer by Defendants Farzad Massoudi, Farzan Massoudi, M.D. Incorporation, Outpatient Health Care, Inc., and Ambulatory Health Centers, Inc. to the Tenth Cause of Action in Plaintiff Tamara McCarthy s Second Amended Complaint. However, because Defendants challenges do not address the entire causes of action the court treats the demurrer as a Motion to Strike to Plaintiff s deficient causes of action. The court will therefore strike the following portions of the SAC: the phrase and Harassment from the title of this cause of action, at page 5, line 25; the phrase and Harassment from page 7, line 11; paragraphs 51-54; and page 16, lines In addition the court notes that Plaintiff dismissed one of the moving defendants Farzad Massoudi, M.D. Incorporation without prejudice on 10/24/12. Accordingly, no relief is granted as to that party. Plaintiff is given final leave to amend, to cure the defects identified in connection with her claims of age- and disabilityrelated harassment in her Second and Third Causes of Action. Plaintiff shall file and serve any amended complaint within 15 days after notice of this order is served. If Plaintiff fails to file an amended complaint by that deadline, Defendants shall file and serve their answer to the Second Amended Complaint within 15 days thereafter. Defendants shall serve notice of this order. Plaintiff Has Not Adequately Pled A Claim For Age-Related Harassment Plaintiff has not adequately alleged that the conduct she experiences was so severe or pervasive as to alter the terms and conditions of her employment and create an abusive work environment. Indeed, Plaintiff s SAC is silent as to whether the terms and conditions of her employment were in any way affected by any of her supervisor s alleged conduct. Read as a whole, the gravamen of Plaintiff s Second Cause of Action is one for discriminatory discharge, not harassment. (See SAC, ) This conclusion is further supported by the fact that this cause of action is apparently brought under Govt. Code, 12940, subd. (a) only, which prohibits unlawful discrimination. (See SAC, 5:26.) The FEHA prohibits unlawful harassment under a separate subdivision, (j). The only reference to unlawful harassment in her Second Cause of Action is in the title of that claim. (See SAC, 5:25.) Therefore, the court will strike the phrase and Harassment from the title of Plaintiff s Second Cause of Action. Disability discrimination and harassment

10 Again, plaintiff has alleged that she was subjected to at least some disability-related comments from her supervisor and unnamed persons acting on Defendants behalf. (SAC, 15, 54.) She also alleges that she was subjected to other comments and conduct possibly related to her disability. (See FAC, ) However, Plaintiff s SAC is again silent as to whether the terms and conditions of her employment were affected in any way by the alleged comments and conduct. Plaintiff s Third Cause of Action is also apparently brought under Govt. Code, 12940, subd. (a) only, and not under Govt. Code, 12940, subd. (j). (See SAC, 7:12.) Therefore, the court will strike the references to unlawful harassment from Plaintiff s Third Cause of Action: the phrase and Harassment from the title of that claim Tenth cause of action breach of the implied covenant of good faith and fair dealing Defendants demurred to this same cause of action as pled in Plaintiff s FAC, raising substantially similar arguments. The court overruled that demurrer. Defendants offer no new, persuasive argument that would alter the court s prior conclusion. While it is far from clear whether Plaintiff will be able to prevail on this cause of action, it appears adequately pled. Twelfth cause of action wrongful termination and retaliation in violation of public policy A violation of Lab. Code, 132a cannot support a common law claim for wrongful termination in violation of public policy. (Dutra v. Mercy Medical Center Mt. Shasta (2012) 109 CalApp.4th 750, ) Plaintiff s reliance on City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 is misplaced. The court further rejects Plaintiff s startling assertion that Dutra is not binding precedent on this case because it is an appellate case from another appellate district. As the California Supreme Court explained almost 60 years ago: Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. Moreover, plaintiff does not suggest that any published decision of any other Court of Appeal is in conflict with Dutra. Therefore, this court is plainly bound to follow Dutra. However, Defendants challenge to this cause of action will not dispose of the entire claim, the court will deem the demurrer to this claim as a motion to strike for the reasons discussed above in

11 Jeffery D. Gross, M.D., Inc. v. Medlock Gasca v. Home Depot U.S.A. Inc Caruana v Diloreto connection with the demurrer to Plaintiff s Second and Third Causes of Action. The court will therefore strike page 16, lines 10-11, which alleges Section 132a as a basis for this cause of action. O/C O/C s (1) The court DENIES plaintiff s Request for Judicial Notice and SUSTAINS defendant s evidentiary objections. (2) The court OVERRULES defendant s demurrer to the 1 st cause of action and SUSTAINS Defendant s demurrer to the 2 nd cause, with 20 days leave to amend. (3) The court GRANTS defendant s Motion to Strike, with 20 days leave to amend. s (1) Plaintiff s REQUEST FOR JUDICIAL NOTICE and Defendant s EVIDENTIARY OBJECTION: The document is irrelevant to the issues on demurrer. A document must be relevant for the court to take judicial notice of it. (See Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 59; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063). (2) DEMURRER: First cause of action (motor vehicle) Defendant fails to show that any element of the cause of action is missing. Indeed, the Judicial Council form complaint used makes it easy for a plaintiff to state a motor vehicle (i.e., negligence) claim. Defendant argues, without citation to authority, that more specificity is required when a claim is being made against a sitting Superior Court judge. The court is aware of no such authority. To survive demurrer, plaintiff need not allege the exact time and place of the accident, nor the names of the police officers involved. Also, a demurrer for uncertainty should be sustained only where the pleading is so bad that defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615.) Here, defendant fails to show how the 1 st cause of action is uncertain. Second cause of action (intentional tort) Defendant argues that a demurrer to the 2 nd cause of action should be sustained because plaintiff has merged at least four different claims into one cause of action. This argument appears to have merit. Defendant cannot reasonably respond without understanding what particular claim is being asserted against him by way of the second cause of action. (See Cal. Rules of Court, rule 2.112, requires each cause of action to be

12 Zimmerman v. Wheel Solutions, Inc. separately stated.) (3) MOTION TO STRIKE Without a sufficient second cause of action, there is no basis for punitive damages as plaintiff did not utilize the Judicial Council s Exemplary Damages Attachment (Form PLD-PI- 001(6)). Also, even if the second cause of action had survived demurrer, insufficient factual allegations, as opposed to conclusory allegations, were pled to support a punitive damages claim. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 ( The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation]. ]. See also, Serrano v. Priest (1971) 5 Cal.3d 584, 591 [ We treat the demurrer [or motion to strike] as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. ].) Here, for example, plaintiff concludes that defendant intentionally fled the scene but fails to allege facts and/or the particular circumstances to show that defendant acted despicably and with willful and conscious disregard of the rights or safety of plaintiff or others. The court OVERRULES the demurrer of Defendants Wheel Solutions, Inc. and Glenn Paul Roberts to the First, Second, and Ninth Causes of Action in Plaintiff Jason Zimmerman s Complaint. Defendants shall file and serve their answer to Plaintiff s Complaint within 20 days of service of notice of this order. Plaintiff is to serve notice of this order. The Demurrer is untimely The court may reject the demurrer as untimely. Here defendant demurrer is 35 days late. However, the court has discretion to consider an untimely demurrer on the merits. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Factors to be considered in exercising that discretion are whether the delay affected the plaintiff s substantial rights, whether the plaintiff took steps to obtain a default judgment, and whether the plaintiff has demonstrated that the delay prejudiced him or her. (Ibid.) Plaintiff here does not object to the demurrer on the grounds that it is untimely, or suggest that the delay caused her prejudice or affected their substantial rights. Neither did Plaintiff attempt to take Defendants default. Therefore, the court will move to the merits of the demurrer. The 1 st, 2 nd, and 9 th C/A Plaintiff s First and Second Causes of Action are for Negligence and Professional Negligence, respectively. Plaintiff s Ninth Cause of Action is for Willful Misconduct. As the parties agree, a claim for willful misconduct is essentially a claim for aggravated negligence. (See New v. Consolidated Rock Products Company (1985) 171 Cal.App.3d 681, )

13 Craig v. Neill Gas Inc. Therefore, an essential element of each of these claims is the existence of a duty owed by Defendants to Plaintiff. (See Federico v. Superior Court (1997) 59 Cal.App.4th 1207, [essential elements of negligence claim]; Budd v. Nixon (1971) 6 Cal.3d 195, 200 [essential elements of professional negligence claim] [superseded by statute on other grounds].) Although not clearly addressed by Plaintiff, the fact that Defendants allegedly owed Plaintiff a contractual duty does not immunize Defendants from a negligence claim based on a breach of that duty. (Eads v. Marks (1952) 39 Cal.2d 807, 811.) The same act may be both a tort and a breach of contract. (Id. at p. 810.) Even where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty. (Ibid.) Indeed, a claim for professional negligence is nearly always based on a duty undertaken by the professional as part of a contractual relationship. Motion(s) to Quash are GRANTED. When a nonresident enters California to execute or perform a contract with a California resident does not per se establish minimum contacts. The court considers all factors affecting negotiation, execution and performance of the contract in determining whether defendant purposefully established minimum contacts with the forum. [Burger King Corp. v. Rudzewicz (1985) 471 US 462, ] But the fact that the nonresident enters California to negotiate or perform a contract is an important factor in the jurisdictional equation. [See Safe- Lab, Inc. v. Weinberger (1987) 193 CA3d 1050, ] Applying this open analysis here plaintiff submits the Declaration of Rino La Rosa (VP of Eureka Partners, Inc dba Craig Realty Group) which offers a management agreement between Outlet Partners and Eureka Realty Partners, Inc, a CA Corporation. However, this agreement is not executed. Since plaintiff fails to assert general jurisdiction or claim how personal jurisdiction can be maintained over non-residents who are members in a non-resident corporation which uses a California management services company in Mississippi. The court fails to see how the management agreement relates to establishing personal jurisdiction over the Mississippi residents. Rather the gist of plaintiff s jurisdictional call is a breach of the Operating Agreement and Letter Agreement. Specifically those Mississippi residents who are also members of a Mississippi company failed to make a required capital payment to a California office. Bearing in mind that all of the specially appearing defendants apparently negotiated and executed those agreements while in Mississippi. Moreover, The Operating Agreement has a choice of law provision the State of Mississippi. Is then the mere requirement that a payment be made in California alone to establish a minimum contact? The answer as explained below is no.

14 Because there is no mechanical yardstick to establish a minimum contact personal jurisdiction depends on whether plaintiff has offered facts to show whether California has a sufficient relationship with the defendant and the litigation to make it reasonable ( fair play ) to require him or her to defend the action in California courts. The below comparison clearly shows that plaintiff has failed to meet his burden compelling the court to impose California jurisdiction on specially appearing Mississippi residents: The extent to which the lawsuit relates to defendant's activities or contacts with California; (the lawsuit only relates to CA to the extent the defendants were required to mail checks to an office in CA) The availability of evidence, and the location of witnesses; (all defendants, the corporation to which all these defendants are members, and the property which this corporation manages, is located in Mississippi) The availability of an alternative forum in which the claim could be litigated (defendant's amenability to suit elsewhere); (no info) The relative costs and burdens to the litigants of bringing or defending the action in California rather than elsewhere; and (Obviously requiring 5 nonresident defendants to come to CA as opposed to one Californian going to Mississippi establishes more costs to Defendants) Any state policy in providing a forum for this particular litigation (e.g., protection of California resident, or assuring applicability of California law). [See World- Wide Volkswagen Corp. v. Woodson (1980) 444 US 286, 292, 100 S.Ct. 559, 564; and Fisher Governor Co. v. Sup.Ct. (Prestwich) (1959) 53 C2d 222, , 1 CR 1, 3 4] (Plaintiff cites to no CA state policy for this particular litigation)

15 RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. February 28, 2013 # Case Name Tentative 1 07CC Newport LLC v. Giftime LLC Cross-Defendant s motion for summary adjudication is DENIED. Requests for Judicial Notice is GRANTED as to court documents (Nos. 8, 10, 16-20) and DENIED to trial exhibits (Exhs. 1-4, 6, 9 & 11) and the court reporter transcripts (Exh. 5, 7 and 12-15) as they were not attached to a proper declaration. The court will only take Judicial Notice of their filing and not the information contained therein. Accordingly, Giftimes evidentiary objections to Exhs. 6 & 11 of Newport Plaza s Request for Judicial Notice (re Trial Exhibits) are SUSTAINED Judicial Notice of this court s 2/7/13 Minute Order (denying motion to compel) is GRANTED Newport Plaza s entire motion is based on the argument that Giftime cannot show any damages to support its breach of lease claim. To prevail a 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.... (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850.) A prima facie showing is one that is sufficient to support the position of the party in question. (Id. at 851.) A cross-defendant moving for summary judgment/adjudication satisfies its initial burden of showing that a cause of action has no merit if it shows that one or more element of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Civ. Pro. Code, 437c(p)(2).) Once a cross-defendant meets that burden, the burden shifts to the cross-complainant to show that a triable issue of one or more material facts exists to the cause of action or a defense.

16 (Id.) To put it more simply if Giftime can offer any damages then Newport s motion must be denied. But Giftime as explained does not need to offer a triable issue of fact as Newport Plaza has not, and cannot, meet its burden because the Court of Appeal Opinion clearly states that sufficient evidence was previously shown to the jury to support damages of at least $1,464,790 on the breach of lease claim. In the Opinion, the Court of Appeal makes clear that sufficient evidence existed to support some, although not all, of the damages awarded by the jury. More specifically, although the Court of Appeal found that there was insufficient evidence to support Giftime s expert s (Brook) use of $3 million as a reasonable estimate of Giftime s annual revenues, there was sufficient evidence to support an award of $1,463,790 in damages. See Opinion at (emphasis supplied): [T]he jury s award of $4,794,228 in lost profits is not supported by substantial evidence. This does not mean there is no evidence of breach of contract damages based on Giftime s expectancy of reasonable parking and driveway common areas from October 2005 through April The record certainly supports the jury s finding that, starting in October 2005, Newport Plaza breached the lease by unreasonably altering the previously favorable parking/driveway arrangement. [T]here is substantial evidence supporting a jury award of $1,463,790 in damages. This is the reason the Court of Appeal offered $973,995 to Giftime in lieu of a new trial. Thus, it matters not whether the Law of the Case Doctrine bars the recovery of lost capital contributions as breach-of-lease damages. The appropriate issue is whether any damages exist, and not whether lost capital contributions can be proven. Nor does it matter whether Newport Plaza would be entitled to an offset. Indeed, the Court of Appeal s Opinion recognized the right to an offset. That is why the Court of Appeal offered $973,995 stead of $1,463,790. The lower amount represents a reduction because of the $489,795 offset (i.e., the judgment belonging to Newport Plaza on its Complaint). As for Newport Plaza s argument that Giftime was already compensated $3 million by co-judgment debtors who settled this action, that fact does not mean that Giftime cannot prove up the damages element or that Giftime will not be awarded more than $3 million if the action proceeds to a re-trial. For example, although the Court of Appeal found Giftime s expert s testimony at the earlier trial to be too speculative based on the evidence then presented, there is no basis to determine at this time that Giftime will be unable to present sufficient expert testimony and evidence to support a damages award of over $3,489,795. In sum, Newport Plaza has not, and cannot, meet its burden here because the Court of Appeal Opinion clearly states that sufficient evidence was previously shown to the jury to support

17 Kelly Yen Wood v. Nazih Haddad Rooney v. Pilatus Aircraft LTD Anthony Baca v. Pacific Rim Mechanical Justin Paul Gille v. Nicole K Izquierdo Anthony W. Rector v. Lawyers Title Insurance Company Decira Primental Ramirez v. City of Santa Ana damages of at least $1,464,790 on the breach of lease claim. So even if the court were to agree with Newport s above arguments which it does not a triable issue of material fact would exists as to the amount of damages that should be awarded to Giftime. O/C Gary M. Pappas Application to appear Pro Hac Vice is GRANTED O/C per Stipulation of parties O/C O/C The court on its own motion continues to 3-21 to allow counsel to correct the following defects in the present motion. 1. File a Proof of Service showing that proposed order was served (CRC (d) 2. State a basis for believing attorney-client relationship is irreparable and show why client consent not obtained (CRC Dieu-Hoa Le v. Ashton Watkins Defendant s Demurrer to the 4 th C/A is SUSTAINED WITHOUT LEAVE TO AMEND Defendant s Motion to Strike is Moot Plaintiffs Opposition was untimely and not considered Defendant s demurrer to the 4 th C/A objects to the use of CA Rules of Professional Conduct serving as a predicate to find that professional misconduct constitutes unfair or unlawful acts supporting a claim. The Court agrees it does not because Cal. Rule of Professional Conduct itself states that these rules do not create new causes of action: 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. CA ST RPC Rule

18 Union Bank, N.A. v. David Loutzenhiser Here, plaintiff s allegations of corporate counsel misconduct in of themselves do not trigger liability. They are only a standard from which discipline may be imposed on a violating attorney and not the basis for an independent claim of harm. As a matter of law therefore, plaintiff s 4 th C/A fails. Plaintiff Union Bank, N.A. s unopposed applications for right to attach orders and writs of attachment as to Defendants David Loutzenhiser (aka David F. Loutzenhiser aka David F. Loutzenhiser, Jr.) and Stacey M. Jinbo-Loutzenhiser (aka Stacey M. Loutzenhiser aka Stacey Junbo-Loutzenhiser) is GRANTED. The total amount to be secured by each writ of attachment shall be $68,825.28, though Plaintiff shall not be entitled to collect more than a total of $68, in connection with both writs. Each right to attach order and writ of attachment shall be issued upon the filing of an undertaking in the amount of $10, for that writ. Plaintiff is to serve notice of this order RDI Inc v. Digital Spectrum Solutions The court GRANTS Plaintiff RDI, Inc. s unopposed motion for an order awarding it attorney s fees. Pursuant to Civ. Code, 1717 and Code Civ. Proc., 1032, the court AWARDS Plaintiff attorney s fees against Defendants Digital Spectrum Solutions, Inc. and Mohammed Parsa (aka John Parsa), jointly and severally, in the total amount of $84, The court also AWARDS Plaintiff costs of litigation against Digital Spectrum and Parsa, jointly and severally, in the total amount of $8, Plaintiff is to serve notice of this order. First, the court points out that the instant motion was filed on 12/31/12, 4 days before the court executed and entered judgment in Plaintiff s favor. Therefore, it was technically filed prematurely. However, a premature motion for fees should is deemed timely absent objection by the opposing party and a showing of prejudice. (Yuba Cypress Housing Partners, Ltd. v. Area Developers, supra, 98 Cal.App.4th at p ) Second, defendants make no such objection, and there is no indication that they will be prejudiced by ruling on this motion. CRC Rule Plaintiff as prevailing party is entitled to attorney fees As to the merits of the fees plaintiff is entitled to an award of

19 attorney s fees against both Defendants because plaintiff is the party prevailing on the contract and is entitled to reasonable fees, which are recoverable as costs under Code Civ. Proc., (Civ. Code., 1717; Code Civ. Proc., , subd. (a)(10)(a).) Plaintiff is also the The prevailing party under Section 1717as he is the party who recovered greater relief in the action on the contract. (Civ. Code, 1717, subd. (b)(1).) Here, plaintiff obtained judgment in its favor, as against Parsa, for violation of a written settlement agreement. (01/03/13 Judgment, p. 4.) Section 4.4 of that settlement agreement provides that, in a legal action to enforce or interpret this agreement the prevailing party shall be entitled to recover from the losing party the reasonable attorneys fees and costs incurred by the prevailing party Plaintiff is therefore the prevailing party as to Parsa, entitled to fees; a conclusion not disputed by Parsa. Plaintiff also obtained judgment in its favor, as against Digital Spectrum, by way of a motion to enforce the same settlement agreement. (See 06/15/12 Minute Order on Plaintiff s Motion to Enter Stipulated Judgment.) While the judgment entered against Digital Spectrum is not for breach of the settlement agreement, that judgment was obtained pursuant to the settlement agreement. Plaintiff therefore is the prevailing party under that agreement as to Digital Spectrum, entitled to fees (see Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101); a conclusion not disputed by Digital Spectrum. The amount of fees The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Fee setting ordinarily begins with the lodestar, a figure based on the number of hours reasonably expended multiplied by the reasonable hourly rate. (Ibid.) The lodestar figure may then be adjusted upward or downward, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.). Explained below are the applicable criteria commencing with the hourly rate. Hourly rate Plaintiff requests that the court award fees at the following hourly rates: Mr. Kline: $225.00; Ms. Geffner: $300.00; Ms. Leavitt: $300.00; Mr. Comer: $300.00; and

20 Mr. Esenstein: $ (Esensten Dec., Ex. B.) These rates are reasonable as they are consistent with the prevailing market rates charged by attorneys of similar experience in this community. (See PLCM Group, Inc. v. Drexler, supra 22 Cal.4th at p. 1095; Esensten Dec., 6-9.) Moreover, defendants do not dispute the reasonableness of these hourly rates, or contend that different rates should apply. Number of hours Plaintiff submits a summary printout generated by [its counsel s] accounting department that accurately lists each attorney billing entry from September 12, 2011 through December 4, 2012 that was invoiced to [Plaintiff] with respect to the instant motion. (Esensten Dec., 3-5 and Ex. B.) These records reflect a total of hours spent by counsel s office. (Esenseten Dec., Exh. B) As to those entries, the declaration and records in support are corroborative to meet plaintiff s initial burden of justifying the fees sought except in the following entries which the court finds were not reasonable. 4.1 hours apparently spent by Mr. Kline for work related to responding to a document subpoena from Google.com (see entries for 10/04/11, 10/05/11, and 10/13/11); 79.6 hours apparently spent by Mr. Kline for work related to Plaintiff s motion for summary judgment/adjudication, which the court denied as being moot and unsupported by any evidence (see entries for 06/28/12, 06/29/12, 08/08/12, 08/09/12,08/10/12, 08/14/12, 08/15/12, 08/16/12, 10/03/12, 10/24/12, 10/25/12, 10/26/12, 10/31/12, 11/01/12, 11/07/12, and 11/08/12; see also 11/08/12 Minute Order on Plaintiff s motion); 4.5 hours apparently spent by Ms. Geffner for work related to Plaintiff s motion for summary judgment/adjudication (see entry for 08/17/12); and 0.6 hours of paralegal time and 5.0 hours of associate attorney time for which Plaintiff was apparently never billed because it was largely for time spent on communications between and among Plaintiff s counsel. Additionally, The court finds that 4.8 hours of Mr. Kline s time spent in connection with preparing the instant motion, The time spent preparing the moving papers appears reasonable

21 and appropriate. In light of the above, and given the lack of any opposition by Defendants, the court finds that Plaintiff is entitled to recover for only the following time: Mr. Kline: hours; Ms. Geffner: 1.0 hour; Ms. Leavitt: 2.9 hours; Mr. Comer: 13.5 hours; and Mr. Esensten: hours. The final calculation of the above reasonable hours when multiplied by counsels hourly rates, results in a lodestar figure of $84, Costs As to Cost plaintiff timely filed and served a verified Memorandum of Costs for a total of $$8, Defendants failed to timely file a motion to strike or tax costs, or otherwise challenge the amount sought, thereby waiving any such contentions. The court notes, however, that the $520 filing fee for Plaintiff s motion for summary judgment/adjudication does not appear to have been reasonably incurred, as the court denied that motion as being moot and unsupported by any evidence. Thus, excising this item, costs are awarded in the amount of $8,

22 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. # Case Name Tentative May 9, Ochoa v. Fountain Valley Hospital The court GRANTS defendant Khaled Chan, M.D. s four motions to compel discovery. Plaintiffs Olivia Ochoa and Arthur Ochoa are each ordered to respond to defendant s (1) Form Interrogatories, Set One, and (2) Special Interrogatories, Set One. The court orders plaintiffs Olivia and Arthur Ochoa to each pay moving defendant $726 in sanctions (i.e., a total of $1,452) and to respond to the discovery, both within 20 days of notice of the court s order Balboa Capital Corporation v. Grandma s Inc. s (1) The court GRANTS defendants request to take judicial notice of (A) the Request for Entry of Default and (B) the court docket sheet. The court DENIES defendants request to take judicial notice of the unconfirmed copy of the request for entry of default. (2) The court GRANTS defendants motion to set aside their defaults and default judgment. Defendants are ordered to separately file their proposed Answer forthwith, which is deemed served as of the date of the hearing. Despite plaintiff s arguments to the contrary, the motion appears to be timely in that the motion was filed within six months of the entry of judgment i.e., motion filed on March 29, 2013, less than six months after default judgment entered on October 3, (See Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297 [confirming that a Section

23 473(c) motion runs from entry of judgment and not entry of default). Although defendants could have acted more diligently by filing the motion sooner, it appears that the delay was due to defendants residing out-of-state and their apparent confusion regarding when and whether defaults were being entered. Further, the delay appears to have been cause in part by defendants counsel s failure to review the file earlier. (See David Wilkirson Decl., filed 5/2/13, at 6.) Finally, the law strongly favors trial and disposition on the merits. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) (3) The court however CONTINUES this matter for further briefing as to the appropriate amount of compensatory costs to award plaintiff here, pursuant to Section 473(c)(1) of the Code of Civil Procedure. The hearing is continued to May 30, Plaintiff to provide a declaration, filed and served (personally or by overnight mail) by May 13, 2013 to substantiate the $10,600 in attorneys fees and $1, in costs being claimed. Any opposition to be filed and served (personally or by overnight mail) by May 17, Any reply to be filed and served (personally or by overnight mail) by May 22, Craig v. Neill Gas, Inc Specially Appearing Defendants unopposed motion for attorneys fees and costs is GRANTED and Attorneys fees in the amount of $10,580 and costs in the amount of $2,325 will be added to the judgment. After a trial court grants a motion to quash service of summons due to lack of personal jurisdiction over an out-of-state defendant, the court retains jurisdiction to rule upon that defendant s motion by special appearance for attorney fees; an order awarding fees to defendant does not compel any act or impose any liability upon the foreign defendant. Shisler v. Sanfer Sports Cars, Inc (2008) 167 Cal.App.4 th 1, 6.; Ca Civ Code Here Specially appearing defendants were forced to incur attorneys fees and costs in bringing the successful Motions to Quash Service in this matter. They request pursuant to Ca. Civ Code 1717 and 12.8 of the Operating Agreement these expenses. The court finds that they are so entitled to these expenses. As to the reasonableness of the fees and costs, 44 hours for the preparation of 5 motions to quash does not appear unreasonable; especially considering two attorneys (one, out of state) were working together. That is roughly five (5) eight-hour work days to complete five (5) motions to quash. Also, the hourly rate of $200 and $250 is not unreasonable. The amount of $2,325 for costs associated with the filing and motion fees is not unreasonable on its face, and there is no opposition to declare otherwise Mountain West Medical v Eccard If no verified Responses have been submitted then the Motion of Plaintiff Mountain West Medical, Inc. for Order Establishing Admissions Specified in Requests for Admission (Set One) Be Deemed Admitted and Conclusively Established is GRANTED. The request for monetary sanctions against Defendant Mark Eccard, in the amount of $565.00, is also GRANTED: sanctions are to be paid to counsel for Plaintiff within 35 days after service of notice of this Order. If no verified Responses have been submitted then the Motion of Plaintiff Mountain West Medical, Inc. for Order Establishing Admissions Specified in Requests for Admission (Set One) Be Deemed Admitted and Conclusively Established is GRANTED. The request for monetary sanctions against Defendant Mark Eccard, in the amount of

24 $565.00, is also GRANTED: sanctions are to be paid to counsel for Plaintiff within 35 days after service of notice of this Order. Counsel for Plaintiff to give notice Carranza v Ibrahim The Demurrer to Defendants First Amended Answer to the 4 th and 5 th Affirmative Defense SUSTAINED WITH LEAVE TO AMEND. The Demurrer is OVERRULED as to all other affirmative defenses asserted in the First Amended Answer. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the Answer filed by Defendants purports to assert 17 affirmative defenses, all of which are at issue in the instant Demurrer. However, a review of the defenses at issue reflects that most of them do contain factual allegations sufficient to apprise Plaintiff of the factual basis for the defense, or are really affirmative denials. It is clear that plaintiff should have focused as set forth below on the real defects rather than forcing the court and defendants to address its bird shot challenge. The 4 th Affirmative Defense the statute of limitations. A defendant is not required to plead ultimate facts to state a statute of limitations defense; only to specify the statute(s) relied upon, including the subdivision(s) if applicable. (Code Civ. Proc., 458; Davenport v. Stratton (1944) 24 Cal.2d 232, ) Here, Defendants have primarily done so. However, they have failed to state the applicable subsections upon which they rely for C.C.P. 339 and 340, and have also invoked a Civil Code provision ( 3144) which was repealed in 2010, and in any event patently inapplicable here, as it pertains to commencement of an action to enforce a mechanic s lien The 5 th Affirmative Defense for Laches. The basic elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.) Here, the Complaint states only that Plaintiff waited an unreasonable amount of time before filing its Complaint and then filed in retaliation. This does not allege facts sufficient to constitute a laches defense. In addition, the defense of laches is confined to equitable actions; in legal actions delay and prejudice do not amount to a bar while the statute of limitations has not yet run. (3 Witkin, Cal. Proc. 5th (2008) Actions, 446, p. 568; Perez v. Singh (1971) 21 Cal.App.3d 870, 872 [ Laches may not be asserted as a bar to a legal action. ].) Here, Plaintiff has asserted only two causes of action, both seeking damages based on labor laws Kinsall v. Pacific The Unopposed Motion to Enforce the Terms of the Settlement is GRANTED.

25 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. May 30, 2013 # Case Name Tentative Vecchio v. Amen Motion to Enforce Settlement: DENIED It is entirely unclear why court approval of the new Mutual Release and Settlement Agreement is necessary or proper. Defendant concedes that it is not seeking entry of judgment, against a party in breach of a Settlement Agreement, and is no longer seeking clarification as to the terms of the Settlement, no Court action appears necessary Inhale Inc v. Worldwide Smoke Inc Defendant s Demurrer is sustained without leave to Amend as to Breach of Contract as to Worldwide only. Defendant s demurrer to the 2 nd, 3 rd and 4 th causes of action are OVERULED. Defendant s to answer in 10 days. Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process. (Cleveland v. Policy Management Systems Corp. (5th Cir.1997) 120 F.3d 513, 517, fn. omitted.) As set forth below Worldwide is judicially estopped except for the breach of contract as to Worldwide from now claiming res judicata to attack plaintiffs 4 th amended complaint. First, in reviewing the arbitrator s award it is obvious that defendants resisted any effort by plaintiff s claimant in the action and the arbitrator to include the fraud claims. For example, the arbitrator writes Respondent stated that it did not want to move to expand the scope of arbitration because such an expansion would be prejudicial to Respondent given the lack of time to prepare and defend the additional claims (p.4 arbitrators award) In light of this obvious intent defendant s disingenuously ask this court how did it abandon its claims as to the fraud. Based on the above it is clear

26 that it did. Second, the court points out that the arbitration motion was resisted by plaintiff and it sought to cull out the fraud claim. This was rejected by this court when it granted the motions to compel arbitration. Thus all claims were intended by this court to fall within the arbitration. So for now defendants to assert that plaintiff litigated or had the opportunity to present those claims and therefore res judicada requires this court to disregard and rewrite the arbitration award. It will not do so. The bottom line here is that this Court granted Bard s and Worldwide s separate Motions to Compel Arbitration, which was understood to include all the claims pled against the defendants. However, whether by mistake or design what ultimately got arbitrated was just the Breach of Contract cause of action as pled against Worldwide. The other claims were not decided by the arbitrator. Moreover, the award without objection has been confirmed Sadeghi v. The City of San Clemente Defendant City of San Clemente s Motion for Attorney s Fees is GRANTED in the amount of $7,250. The Court grants the City s unopposed request for judicial notice as to the documents attached as Exs. A-I to the Declaration of Mr. Oderman, as filed with the Motion. This Court already determined that the hourly rates of City s counsel were reasonable. The only remaining issue, then, is whether all of the new attorney time claimed was proper. The court notes that in the Reply, City has withdrawn its request for Mr. Thind s time. It has also withdrawn requests for a total of.6 hours of Mr. Oderman s time, leaving 16.5 hours as the balance of the request (which includes 4 hours for preparing the Reply and appearing for the pending hearing). Plaintiff has objected to two categories of time. The first is a 1.3 hour fee for time that Mr. Oderman spent in closed session with the City Council. The court agrees that this time to communicate with the city council Although the about the pending appeal and a related settlement proposal is too tangential to warrant inclusion in a fee award. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4 th 191, [fees cannot be recovered for work unrelated to the SLAPP motion].) Similarly,.7 hours which Mr. Oderman spent attempting to get a case published, for citation in the instant appeal, again is too tangential to include in the fee award Kim v. Baltayan The court CONTINUES defendants motions to compel plaintiff s mental examination and deposition to August 1, Defendants are permitted to continue with other discovery in the meantime, including the deposition of Dr. Sung, in order to determine whether plaintiff is capable of proceeding with the neuropsychological examination and deposition. Plaintiff is to cooperate with providing information necessary regarding the reason provided for not proceeding now with the examination and deposition. Defendants to file and serve any supplemental briefing by July 10, Any opposing papers to be filed and served by July 19, Any reply papers to be filed and served by July 25, Buffington v. Rouse Motion to Strike is GRANTED, without leave to amend. In order for a Plaintiff to recover punitive damages, the Plaintiff must plead and prove that Defendant was guilty of malice, oppression, or

27 Hess v. Gordon lane Health Care, LLC Gomez v Greentree Servicing, LLC Pouzbaris v. Prime Healthcare LLC fraud. Civil Code 3294(a). Here, as there are no allegations of fraud, the Court need only examine malice and oppression. It is settled that ordinarily routine negligent or even reckless disobedience of traffic laws will not justify an award of punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890. What is missing from plaintiffs allegation is that state of mind to intentionally or purposely cause injury for example intoxication. Here, Plaintiff s allegation that Defendant inappropriately attempted to pass other bicyclists, in a manner which violated California Vehicle Codes and resulted in injury, is not malice or oppression it is violation of a traffic law. It is an allegation supporting negligence nothing more and as such does not support punitive damages. All other motions filed in this matter except as provided have been withdrawn. Plaintiff s Motion to Compel Further Responses to RPDS, SEt 1 as to Defendant Sun Mar Management Services (10, 12, 13 only) Defendant indicates it has provided supplemental responses to numbers 10 and 12, therefore the motion is moot as to those RPDS. To the extent the motion is not moot as to those RPDS. As to RPD 13 Clearly, whether the board members knew of staffing issues and/or patient care issues is relevant to this lawsuit. The issue is whether board minutes are private. Defendant fails to cite to any case suggesting that board minutes are private or will disclose any private information. As defendant fails to support its objection, motion is GRANTED as to RPD, No. 13. Defendant to provide further responses, without objection, within 10 days. Plaintiff s Motion to Compel Further Responses to Special Interrogatories, Set 1 to Defendant Gordon Lane Healthcare, LLC (13-18 only): Court DENIES the motion as to these requests. The court points out that the information is private yet fails to offer any detail as to what particularized need supports the disclosure of this confidential information. Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661. Furthermore, plaintiff admits that defendant disclosed the names of all the employees who provided care to Plaintiff in Special Rog No. 1. Therefore, Plaintiff already has the names of those individuals. RULING: The Demurrer of defendants Bank of America, N.A. & ReconTrust Company, N.A to the First Amended Complaint is SUSTAINED as to the First, Second and Third Causes of Action, with leave to amend. Plaintiffs to file any amendment within 20 days after service of notice of this Order. Defendants to give notice. Defendants request for judicial notice is GRANTED for Exs. A- F, as to the existence and recordation of those documents and the legal effects thereof, but not of facts stated in Exs. B and E as to the amounts owed when they were recorded. The Motion for Summary Judgment filed by Defendant Prime Healthcare Services - Anaheim, LLP dba West Anaheim Medical Center is GRANTED The facts are as follows plaintiff alleged injury occurred while she was a patient in Defendant s hospital, travelling without assistance or supervision between the bathroom and her hospital bed. She allegedly fell because the floor in her room was slippery. The claim is thus based on Defendant s alleged failure to ensure Plaintiff s safety while ambulatory in the hospital, and is therefore a claim for professional negligence. Moreover it arises from the rendering of services for which

28 the hospital is licensed. Finally it is undisputed that she fell on 6/15/10 and knew of the alleged negligence at that time. (UF 1-5.) The issue presented by defendants motion is under these facts is plaintiff s action time barred under Section 340.5? After a review of the applicable law it is. Under Section 340.5, the limitations period for an action for injury or death against a health care provider based upon such person's alleged professional negligence is 3 years after the date of injury or 1 year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. Further, when a cause of action is asserted against a health care provider on a legal theory other than medical malpractice, the courts must determine whether it is nevertheless based on professional negligence, so as to trigger MICRA. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 353 [claims for intentional torts not subject to MICRA where premised upon stealing and then selling a person's genetic material for financial gain].) Thus, allegations of a negligent act or omission by a health care provider in rendering professional services which proximately caused injury are subject to Section 340.5, if the services are within the scope of the provider's license. (C.C.P (2); Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 807; Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 [ professional negligence under MICRA includes claims for fraud where premised upon performance of professional services]. Here, Defendant claims that this action is subject to Section under Murillo and its progeny, because the claim is one brought by a patient against a hospital for an alleged injury sustained in the course of the hospital s care for her, and is thus really a claim for professional negligence. Defendant is correct because contrary to Plaintiff s claim, under Flores v. Presbyterian Intercommunity Hospital (2013) 213 Cal.App.4 th 1386, (which was published after this Motion was filed) does not represent a change in existing law, or a rejection of the holding in Murillo. Nor, as Defendant argues, does it represent a sudden split in the appellate courts of this state. Instead, Flores can be reconciled with and viewed as consistent with the holdings in Murillo, Flowers, and Bellamy (although potentially inconsistent with dictum in Murillo) in concluding that a claim based on an equipment failure in a hospital, rather than a failure to properly secure or supervise a patient, does not trigger Section Under all of these cases, if the alleged negligence occurred in rendering services for which Defendant is licensed, Section controls.

29 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 6, 2013 # Case Name Tentative Grace v. Hendricks The court DENIES defendant s motion to compel further responses to defendant s Special Interrogatories. The motion is both procedurally and substantively defective. First, the Separate Statement fails to comply with Rule of the California Rules of Court. Second, defendant fails to show that the objections made and/or the answers provided are improper. For example, it appears that defendant is attempting to avoid the consequences of having failed to previously move to compel further responses to her form interrogatories Carlson v. Saddleback Church Plaintiff is awarded $1,500 in sanctions against moving defendant payable to plaintiff s attorney within 15 days of this order. The Motion to Tax is DENIED as to all but Reporters fees and Models, Blowup, and photocopies cost which is taxed as follows: Reporter s fees are reduced from $4,750 to 4,250. Models, blowup and photocopies of exhibits are reduced from $ to 1, Expert witness Fees are awarded under CCP 998 (c)(1) in the sum of $45,505. Total cost to defendants awarded per cost bill is $82, First the court finds that Plaintiff s Motion is untimely. Under C.R.C However, time limitations pertaining to a memorandum of costs are not jurisdictional. (Haley v. Casa Del Rey Homeowners Ass'n (2007) 153 Cal.App.4th 863, 880.) The trial court thus has jurisdiction to consider an untimely cost bill. (Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, ) Here, as Defendants have presented no claim that they were in any way prejudiced by the one-day delay in Plaintiff s submission of its Motion to Tax Costs, the court will consider the merits. As to the

30 merits we start with that if items in a cost bill appear to be proper, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. Ladas v. Cal. State Auto Ass n. (1993) 19 Cal.App.4th 761. Here, except for reporter fees and the charge for the video enhancement plaintiff has not shown that the cost bill submitted was not reasonable and necessary to the litigation of this lengthy and complex matter. As to the discretionary cost regarding expert witness fees as explained below plaintiff has not met her burden to show that the offer was not reasonable when made. Under C.C.P. 998(c)(1), Defendants may recover all of their reasonably necessary expert fees, whether incurred before or after the offer was made. (Regency Outdoor Advertising v. City of Los Angeles (2006) 39 Cal.4 th 507, [expert witness fee awards under C.C.P. 998(c) have never been tied to when these fees were incurred relative to a compromise offer. ].) Plaintiff has attempted to avoid this result by arguing that the C.C.P. 998 offer was not reasonable when made. However, as noted in Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700, upon which Plaintiff relies: Where, as here, the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998. The burden is therefore properly on plaintiff, as offeree, to prove otherwise. The burden is on Plaintiff to establish that the offer was not reasonable. She has failed to do so. In addition, the fact that a defense verdict was reached within hours after the jury commenced deliberations tends to support Defendant s claim that, even when the offer was made, there were substantial weaknesses in Plaintiff s case, and as to Plaintiff s credibility, which affected the potential settlement value for the action. (Berman Decl., 25, 26.) Defendants may thus recover for their expert fees, as they have provided sufficient explanation to establish that the costs for the experts at issue were reasonably incurred to respond to Plaintiff s claims, even if not all of them ultimately had to testify, which Plaintiff has failed to effectively refute. (Berman Decl., ) Defendants may reasonably recover these fees. However, $51,058.5 was requested for that category, without explanation for the difference. It appears that lay and expert witness fees were combined. So the award for expert fees only is $45, Jiagbogu v. Bank of America The requests for judicial notice filed by both Plaintiff and Bank of America is GRANTED. Defendant Bank of America, N.A. s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is GRANTED The moving party bears the burden of persuasion to demonstrate that there are no triable issues of material fact and that it is thus entitled to summary judgment as a matter of law. (C.C.P. 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 851.) The moving party has the burden of establishing that either (1) one or more elements of the plaintiff s claim cannot be established, or (2) a complete defense to that cause of action exists. (C.C.P. 437c(o).) If the moving party carries its initial burden, then the party opposing the motion must produce admissible evidence to show that a triable issue of fact exists. (C.C.P. 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4 th 66, 72.) The moving party s papers are to be

31 strictly construed, while the opposing party s papers are to be liberally construed. (Comm. to Save Beverly Highland Homes Ass n v. Beverly Highland (2001) 92 Cal.App.4 th 1247, 1260.) A court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment: all evidentiary conflicts are to be resolved against the moving party. (McCabe v. Am. Honda Motor Corp. (2002) 100 Cal.App.4 th 1111, 1119.) Against this backdrop the court reviews whether the claims are barred by the SOL and as a matter of law. As explained below they are. Statute of Limitations on the 1 st and 2 nd COA Plaintiff s claims for the First and Second Causes of Action, which assert claims for fraud and negligent misrepresentation, are subject to C.C.P. 338(d), which provides a three-year limitations period. However, for such claims, the cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. Here, Plaintiff s claims are based upon events that allegedly occurred in the third meeting that led to loan origination in (Complaint, 18-24, 32-37, ) Such claims are thus time-barred under C.C.P. 338(d) because the Complaint was not filed until 2/28/11, unless Plaintiff can establish delayed discovery. Plaintiff offers no evidence to support delayed discovery tolls the SOL. To assert a claim that is time-barred on its face, a plaintiff must 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 (2005) 35 Cal.4 th 797, 808.) The burden is on plaintiff to show diligence, as conclusory allegations will not suffice: the plaintiff must thus show that, despite diligent investigation, he could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period. (Id.) Plaintiff here has failed to do so. Plaintiff asserts two claims to establish delayed discovery. First, he argues that he did not get copies of the loan documents until 2009, and thus did not know the terms until then. Second, he claims that he did not discover that he had obtained an adjustable rate loan, so that his monthly payments could change, until September 2008, when his monthly payment increased to $22,000/month. (Opp., pp. 8-10; PUF ) Failure to read the documents does not trigger delayed discovery. Under California law, Generally, it is not reasonable to fail to read a contract; this is true even if the plaintiff relied on the defendant's assertion that it was not necessary to read the contract. (Brown v. Wells Fargo Bank, NA (2008) 168 Cal.App.4th 938, 959.) able diligence requires a party to read a contract before signing it. (Id; see also Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674, and Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 421 [where party had a reasonable opportunity to discover the essential terms of the contract, failure to do so is attributable to party s own negligence, despite alleged misrepresentations about contract s terms].) Here, Plaintiff does not deny that he signed the loan documents at issue: instead he contends only that he was not provided with a copy. (UF 5-8; Jiagbogu Decl., 21.) However, the Loan Application showed that he was applying for an adjustable rate loan. (UF 4.) The Promissory Note, the Adjustable Rate Rider attached to the DofT, and the Truth in Lending Disclosure Statement also all clearly stated that the rate was adjustable. (UF 4-7; Goldfarb Decl., Exs. B-D.) Plaintiff does not deny that he signed these documents, which plainly disclose an adjustable rate mortgage. able diligence required him to read those documents before signing them. (Brown v. Wells Fargo Bank, NA, supra, 168 Cal.App.4th at

32 959.) Failure to do so does not create a basis for a delayed discovery claim. Change in the monthly payments is not delayed discovery The second claim asserted by Plaintiff to establish delayed discovery is that he did not discover that he had obtained an adjustable rate loan, so that his monthly payments could change, until 9/08, when his monthly payment increased to $22,000/month. (Opp., p. 8; PUF ) However, he admits that his monthly payments under the same loan had previously increased from $7,680.73/month to $8, in September (Jiagbogu Decl., 24.) Plaintiff claims that this change did not alert him to the fact that he had obtained an adjustable rate mortgage because other factors (i.e. changes in property taxes and insurance) could result in variations in the monthly payment even for a fixed-rate mortgage. [1] (Jiagbogu Decl., 24.) However, this increase put Plaintiff, at a minimum, on inquiry notice. This inquiry terminated the accrual delay as to the discovery rule because when a plaintiff has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements i.e. when he has notice or information of circumstances to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) In other words, plaintiffs are charged with presumptive knowledge of an injury if they have information to put them on inquiry or have the opportunity to obtain knowledge from sources open to their investigation. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, ) The statute of limitations begins to run when the plaintiff has information which would put a reasonable person on inquiry. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.) Plaintiff s failure to investigate the basis for his admitted payment increase in 2007 bars his delayed discovery claim. This is supported by BofA letter sent to Plaintiff on 8/6/07, which specifically discusses payment increase issues under his adjustable rate mortgage. (UF 9.) Plaintiff responds only that he does not recall receiving it, but does not actually deny receipt. This response is not sufficient to rebut inquiry notice for purposes of delayed discovery. Further, plaintiff s reliance on Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4 th 230, is erroneous as it did not address delayed discovery. Further, has not cited any authority to suggest that Boschma s holding extends to limitations issues. But in considering summary judgment, where the moving party has carried its initial burden, then the party opposing the motion must produce admissible evidence to show that a triable issue of fact exists. (C.C.P. 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4 th 66, 72.) Here, BofA has made a prima facie showing that Plaintiff s claims are barred under C.C.P. 338(d), the burden shifts to Plaintiff to show, in order to avoid summary judgment, that there are triable issues of fact sufficient to support its delayed discovery claim. Plaintiff as discussed has offered nothing more than self-serving conclusions that he didn t know or that he can t recall. Moreover, Boschma is not applicable to to avoid Section 338(d). For the same reasons, the claims are barred under the four-year UCL limitations provision in B&PC 17208, which is subject to comparable accrual rules. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1196.) No Evidence of Justifiable Reliance (1 st and 2 nd COA) For these same reasons, Plaintiff s 1 st and 2 nd cause of action also fail because Plaintiff cannot establish justifiable reliance. (Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578, 1586, 1589 [having failed to read their policy and having accepted it without objection, insured could not complain that it was not as

33 expected: their reliance on representations about what they were getting for their money was unjustified as a matter of law].) Plaintiff cannot establish justifiable reliance on alleged misrepresentations where he could have discerned the true facts by reading the documents he signed. (Id.) Here, the true facts were apparent from a review of the documents. Plaintiff claims that he did not know he had agreed to an adjustable rate mortgage at all. (Complaint, 1, 22.) This case is thus distinguishable from Boschma, supra, 198 Cal.App.4th 230, which involved claims about the function of an option arm - -where claims involved a teaser rate and actual interest rates and monthly payments sufficient to amortize the loan (or at least pay the accruing interest) were hidden in the complexity of the Option ARM contract terms, court concluded that given our analysis of the loan documents, we reject the contention that the disclosures actually given to plaintiffs preclude reasonable reliance (Id. at 249.) Here, in contrast, the documents obviously provided for an adjustable rate, which was plainly disclosed in multiple loan documents. Plaintiff could thus have easily discerned this fact by even a cursory review of the documents he signed. Finally, Plaintiff cannot establish justifiable reliance on alleged promises that the loan at issue would have a fixed-rate, because he admitted in a prior verified complaint that he entered into the subject loan because he was talked into an option arm loan. (RJN, Ex. K, 10.) He is thus barred from asserting a contrary claim here. (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350 [judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary or inconsistent with a position previously asserted in a prior proceeding].) The 3 rd COA (UCL Claim Plaintiff s UCL claim is barred because UCL claims cannot be based on any sort of vicarious liability. As noted in Emery v. Visa Int l. Serv. Ass n (2002) 95 Cal.App.4 th 952, claims under section cannot be predicated on vicarious liability: a defendant's liability must be based on his personal participation in the unlawful practices and unbridled control over the practices that are found to violate section or (Id. at 960, citing People v. Toomey (1984) 157 Cal.App.3d 1, 14.) Here, Plaintiff s UCL claim is based entirely on alleged misrepresentations that occurred in 2006, yet Plaintiff admits in the Complaint that BofA did not take over Countrywide until January (Complaint, 2.) BofA thus cannot be held liable on Plaintiff s UCL claim Welch v. The Regents of the University of California Rector v Lawyers Title Insurance Company The court GRANTS plaintiff s unopposed motion for leave to amend. The proposed Third Amended Pleading is deemed served as of the date of the hearing. Plaintiff to separately file an original copy of the proposed Third Amended Complaint forthwith. Defendants to respond to the new pleading within 20 days. Court will continue the motion to in order to review transcripts from Court clerk to give notice. On the surface plaintiff s affidavit is internally inconsistent. On the one hand, he states he was not allowed to testify at the January 31, 2013 hearing, while on the other hand he states, I was not properly noticed of this hearing date on January 31, The dismissal was ordered because there was no opposition and no appearance by plaintiff. So, Plaintiff is suggesting he appeared but not allowed to

34 Jaramillo v. Habana Restaurant Talebdoost v Viking Range Corporation testify, but a dismissal was entered because he didn t appear. But from the minute order to which judicial notice is taken it appears that plaintiff knew of the hearing. The real question is whether is whether or not he was allowed to testify is unknown. Thus, a transcript from the necessitates the court continue this motion. Further, as no opposition is filed a review of the transcript is critical to the due process claim. The Motion to be Relieved as Counsel, filed by attorney Deacon Ladasz as to Plaintiff Rene Jaramillo, is DENIED without prejudice. Counsel has not shown that the address where he served the client is current, or that he has been unable to locate a more current address for the client after making reasonable efforts to do so. Executive Appliance Demurrer and Motion to Strike Defendant Executive Appliance, Inc s demurrer is sustained with 20 days leave to amend as to the 3 rd cause of action for Breach of Express Warranties and 6 th cause of action for IIED, and overruled as to the 7 th cause of action for NIED. To the extent the ruling on the demurrer does not render the Motion to Strike moot, it is granted with leave to amend. 3 rd C/A for Breach of Express Warranties This cause of action is uncertain and fails to state sufficient facts to constitute a cause of action against moving defendant. For example, how, when, or by what mechanism any affirmation of fact or promise was made to the consumer about the refrigerator by Defendant Executive. See Cal. Comm. Code 2313(1)(a),(b); Weinstat v. Dentsply Intern., Inc. (2010) 180 Cal.App.4th 1213, th cause of action for IIED, As to this C/A most of the allegations are directed at Defendant Viking. There are no facts that Executive knew the fix it kits were not working and continued to install them, at Vikings direction. Clearly, more facts need to be pled as to when Executive knew the fix it kits were not working and decided to install them anyway, at a risk to the consumer. As pled right now, it appears Executive went out twice to fix the refrigerator. This is not supportive of outrageous conduct, but rather, the opposite. 7 th cause of action for NIED The cause of action pled here is based on bystander theory of NIED. For example, Plaintiff Soraya has pled injury due to Defendants negligence. Complaint 64. Plaintiffs plead they are husband and wife. Complaint 1. Plaintiff Freydoon Talebdoost was present at the scene at the time it occurred. Complaint 22 and 65. Plaintiff Talebdoost has suffered severe emotional distress. Complaint 66. Although in the reply defendant argues that Mr. Talebdoost s severe emotional distress claims are not sufficiently specific, that is a new argument raised for the first time in the reply and was not considered. The Motion to Strike As to the motion to strike, Defendant seeks to strike out the punitive damage language throughout the Complaint. To the extent the demurrer does not render the Motion to Strike is moot it is granted with leave to amend. There are simply no facts to warrant punitive damages against this defendant at this time. Defendant, Viking Range Motion to Strike Motion to Strike punitive damages, claims relating to the Breach of Express Warranty cause of action, and IIED cause of action are GRANTED with leave to amend. The Motion to strike is DENIED as to NIED.

35 Zayat v. Angeles Contractor The court GRANTS defendants unopposed request to take judicial notice of a Verified Certificate of Licensure from the California State License Board, dated January 12, 2013, concerning plaintiff s Contractor s License. The court SUSTAINS defendants demurrer to the entire Complaint, with 30 days leave to amend. In a nutshell, the Complaint fails to allege compliance with Section 7031 of the Business and Professions Code. Section 7031 appears to apply here and plaintiff does not argue otherwise. Section 7031 requires that plaintiff allege that he was duly licensed or allege facts showing an exception. (See Gore v. Witt (1957) 149 Cal.App.2d 681, 686.) Although plaintiff argues that it has substantially complied, facts of such are not alleged in the Complaint. As for the sufficiency of the each of the other C/A in light of the insufficiency of the complaint as a whole it is not necessary at this time to rule on each c/a.

36 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 13, 2013 # Case Name Tentative Le v. Pham Motion re: Receiver s Final Account is GRANTED. The instant motion is granted, as the parties have failed to demonstrate that Mr. Mosier violated Court Orders or acted outside the scope of his authority. Additionally, there is nothing to demonstrate that Mr. Mosier acted in bad faith or caused any significant losses to Newland. Further, as this Court s January 30, 2013 Order required, only, the preparation of Newland s 2012 Tax Return, the Receiver is absolved of any obligation to file the return. Additionally, the Receiver s fees and costs are approved in the total amount of $104,286.78, which reflects a slight reduction based on excessive court appearances by Mr. Mosier and Mr. Baker having been unprepared on September 23, Finally, the Receiver is authorized to satisfy these fees through the assets of Newland and the remainder, by a 25/75 division, with the higher portion being paid by Plaintiffs, the parties who purchased NPI and benefitted the most from the receivership. City of Chula Vista v. Gutierrez (2012) 207 Cal.App.4 th 681, Grace v. v. Hendricks s The court GRANTS defendants two motions to strike in part, and DENIES them in part. Specifically, the court strikes the following from Case No : Re punitive damages: of $100,000 from Item e in the prayer to the 1 st and 2 nd causes of action, from Item b in the prayer of the 3 rd cause of action, and from Item c in the prayer of the 5 th cause of action; of $250,000 from Item b in the prayer of the 4 th cause of action. Re attorneys fees: all of Item a in the prayer to all causes of action, at p. 11, lines of the FAC.

37 Here, plaintiff s request for attorney s fees is explicitly based on Section of the Civil Code. By stipulating to delete the reference to Section , plaintiff appears to concede that Section does not apply in this case. Plaintiff however did not provide any basis to support a request for attorneys fees here. Notably, this action is not based on any contract, let alone any contract with an attorney s fee provision. Moreover, plaintiff (who is an attorney) is in pro per in this action. As such, there appears to be no basis for attorneys fees here. (See Trope v. Katz (1995) 11 Cal.4th 274, 280) [ [A]n attorney litigating in propria persona cannot be said to incur compensation for his time and his lost business opportunities. ].) As to Case No , the court strikes the following: Re punitive damages: of $100,000 from Items e in the prayer of the 1 st, 2 nd, 3 rd, and 5 th causes of action; and of $250,000 from Item b of the prayer of the 4 th cause of action. Re attorneys fees: all of Item a in the prayer to all causes of action, at p. 17, lines 8-9 of the FAC. Same as case The court denies the motion as to all other portions sought to be stricken. Defendants to answer the First Amended Complaints within 10 days Ocampo v OCK Corporation Motion to Vacate Default and Default Judgment is granted. The Court therefore vacates the judgment and orders Plaintiffs to amend the Complaint to add the damages in connection with the consultants, etc. Amended Complaint to be filed and served within 20 days and all defendants ordered to respond per code. Defendants to give notice. Plaintiff asserts that the court should summarily deny Defendant parents motion to again vacate the default judgment because they are just asking for another bite of the apple which this court has already denied. However, as discussed below this is not the same apple? The key issue here is not the improper rehashing of the fraud but the new issue of whether the complaint afforded the defaulting defendants adequate notice of the maximum judgment that could be assessed against them. If it did not as then the default judgment is void allowing this court to vacate that judgment to permit plaintiff to amend to seek that larger amount. Julius Schifaugh IV Consulting Service, Inc. v. Avaris Capital, Inc (2008) 164 CA4th 1393 which places the entire case back at issue allowing defendants to answer and to have their day in court. The Legal principles Defendants seek to vacate the default judgment on grounds of fairness and due process which are embodied in section 580 which controls and prescribes strictly how a default judgment is to be entered against a defaulting party. But as explained below a default judgment must be entered consistent with due process. In In re Marriage of Lippel, supra, 51 Cal.3d at p the Supreme Court explained how fairness and due process were implicated when section 580 was not strictly applied. It is fundamental to the concept of due process that a defendant is given notice of the existence of a lawsuit and notice of the specific relief

38 which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend... [A] defendant is not in a position to make such a decision if he or she has not been given full notice. ( In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.) Following Lippel, the legal principle that controls is that Under section 580, except for personal injury and wrongful death cases, [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint... ( 580, subd. (a).) [T]he primary purpose of the section is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. ( Greenup v. Rodman (1986) 42 Cal.3d 822, 826; accord Becker v. S.P.V. Construction Co., Inc. (1980) 27 Cal.3d 489, 494 ( Becker ); Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1174 ( Electronic Funds ).) In other words, Section 580 ensure[s] that a defendant who declines to contest an action... [is] not subject[ed]... to open-ended liability and operates as a limitation on the court's jurisdiction. ( Stein v. York (2010) 181 Cal.App.4th 320, 325 ( Stein ).) So if when a default judgment awarded against a defendant exceeds the relief demanded in the complaint [citation], or is a different form of relief than that demanded in the complaint [citation], the defendant is effectively denied a fair hearing. ( Id. at p. 326.) Thus, a default judgment awarding damages in excess of the amount allowed under section 580 is not voidable as plaintiff claims but void and therefore beyond the court's jurisdiction. ( Matera v. McLeod (2006) 145 Cal.App.4th 44, 59; accord Greenup v. Rodman, supra, 42 Cal.3d at p. 826.) In deciding whether damages exceed the amount allowed courts must look to the prayer of the complaint or to allegations in the body of the complaint... ( People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667 ( Brar ); Parish v. Peters (1991) 1 Cal.App.4th 202, 216; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, ) Claimed damages therefore must be pled with specificity. [N]o matter how reasonable [a damage amount] might appear in a particular case... [if] no specific amount of damages is demanded, the prayer cannot insure adequate notice of the demands made by the defendant. [Citations.] If damages are alleged in the prayer as according to proof then [ To pass constitutional muster, the complaint must either allege a specific dollar amount of damages in the body or prayer... ] (cite omit) finally, the court has power to set aside a judgment that is void as a matter of law. CCP 473(d). There is no time limit on a collateral attack on a void judgment. Rochin v. Pat Johnson Mfg.Co. (1998) 67 CA4th 1228, With these principles in mind the court turns to the plaintiff s default judgment. Plaintiff s damage allegations do not support the principle award of $113,688. First, the Complaint s prayer sought general and compensatory damages in an amount according to proof at time of trial. However, in the 1 st c/a for Breach of Written Commercial Property Lease, the plaintiff specifically identifies the amount of damages for example, at 23: Plaintiffs have been damaged thereby in a sum in excess of $22, and at 24, Plaintiffs plead, Plaintiffs have been damaged thereby in a sum in excess of $84,970.00, the value of Plaintiffs equipment and property. These two specific sums if totaled would equal $107,470. But in 25, Plaintiffs allege Plaintiffs have been damaged in that they paid consultants, architects, and fees to obtain a Conditional Use Permit for the subject premises, all to their damage in an amount according to

39 proof. The Default Judgment is for the principal amount of $113,688.00, plus pre-judgment interest of $15, and Court costs of $622.00, for a total judgment amount of $129,853.85, plus post-judgment interest at the legal rate. There is no specific sum attached in the prayer or the complaint to support an award of the difference between 107,470 and 113,688 which was the principle amount awarded against defendants. Viewed in context of the entire complaint, the failure in 25 of the complaint to specifically as in paragraphs 23 and 24 the amount sought was insufficient to fairly notify defendants that plaintiffs were seeking $6000 for defendant s contract breach. The default judgment is void Vegas Holding Corp. v. Knapp : The court DENIES defendant s motion to lift the stay to conduct certain discovery. Re plaintiff s evidentiary objections, the court OVERRULES plaintiff s objection No. 1, and SUSTAINS Nos (based on argumentative/improper opinion, speculative, hearsay, etc.) to the Curran Declaration; and OVERRULES plaintiff s objection No. 1, SUSTAINS Nos (argumentative/improper opinion, speculative, hearsay, lack of foundation) to the Knapp Declaration Defendant argues that there is a threat to the preservation of evidence but fails to proffer any evidence showing such. Rather, the arguments made appear to be the same ones made in defendant s unsuccessful opposition to plaintiffs motion to stay Saddleback Magnetic Resonance Imaging Center v. Saddleback Memorial Medical Center : Motion for attorney s fees is DENIED [a]ttorney fees should be awarded to the party who prevails on a petition to compel arbitration only when the resolution of that petition terminates the entire action on the contract. Thus, based on the above, as the instant action includes numerous claims under the contract, which have yet to be decided on the merits, this court cannot determine that petitioner is the prevailing party under the agreement, at this time. The motion for attorney s fees is denied as premature Hess v. Gordon Lane Healthcare, LLC Motion for Trial Setting Preference is GRANTED. C.C.P. 36(a) provides the following: A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Additionally, pursuant to C.C.P. 36(d), the Court may grant preference

40 in its discretion, where medical documentation concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months. Further, pursuant to Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, [f]ailure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. Id. at Here, Plaintiff is an 82 year old man who suffers from dementia. His mental condition, including his memory of events, is deteriorating, making preparation for trial more difficult. 5, 6 of Declaration of Attorney Jennifer L. Turner. Protracted litigation herein will prejudice the Plaintiff. The Declaration by Counsel in support of the motion suffices as evidence for this motion. An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36. Code Civ. Proc., Plaintiff has demonstrated that he meets the requirements of C.C.P. 36(a) and, thus, is entitled to trial within 120 days of this hearing Orange County Transportation Authority v. Dobrott, Trustee The court GRANTS Plaintiff Orange County Transportation Authority s motion of plaintiff for prejudgment possession of property owned by Defendants. Plaintiff shall take possession of the portions of the designated property identified and set forth in Assessor Parcel Nos , identified in the Complaint and the court further orders removal therefrom all person, obstacles, improvements or structures of every kind of nature situated thereon. Plaintiff shall take possession of the property thirty (30) days after service of the order for possession. Plaintiff is to serve notice of this order Lee v. Ko Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part as follows: Defendants Motion for Judgment on the Pleadings is GRANTED, as to the Fifth and Seventh Causes of Action, with 10 days leave to amend. Defendants Motion is GRANTED as to the Sixth Cause of Action, without leave to amend. Lastly, Defendants Motion is DENIED as to the request for punitive damages. As an initial matter, this Court has discretion to hear the instant motion. Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4 th 13, 25; Stoops v. Abbassi (2002) 100 Cal.App.4 th 644, 651. Fifth Cause of Action: Fraudulent Transfer While Plaintiff alleges the value of the consideration Defendant Transferee received in the transfer was not reasonably equivalent to the value of the assets of the Transferor, ( 30 of SAC), this statement is nonsensical. Plaintiff has insufficiently alleged that HIGHKO transferred assets, without reasonable consideration. Further, while Plaintiff asserts that full permission and authority is sufficient to communicate intent by BCRK, Inc., this statement is

41 unclear. Plaintiff s pleadings suggest, only, permission to transfer the assets. ( 29.1 of SAC). Regardless as permission and authority do not clearly communicate intent, this allegation is insufficient to state a claim. Sixth Cause of Action: Conspiracy Conspiracy is not a cause of action. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4 th 503, ; Additionally, this claim fails, as Plaintiff s SAC inconsistently alleges the conspiracy was formed after the alleged tortious act was committed ( 29 and 34 of SAC). Seventh Cause of Action: Assumption of Successor Liability Defendants Motion for Judgment on the Pleadings, similarly, is granted as to the Seventh Cause of Action, as Assumption of Successor Liability is not a Cause of Action; rather, Plaintiff is given leave to plead this allegation, in relation to whichever specific claims, Plaintiff seeks to hold Defendants liable Greenberg v. KPMG LLP s (all 3 motions) Defendant KPMG s Petition to Compel Arbitration and Motion to Stay Proceedings is GRANTED. Upon entry of the orders set forth herein, the action shall be stayed under C.C.P pending completion of the arbitration. Plaintiff s unopposed request for judicial notice as to the two court records submitted, under Evidence Code 452(d) (court records), is GRANTED. Plaintiff s request for an Order requiring KPMG to fund the costs of the arbitration in full is DENIED. The unopposed Motion to Quash Service of Summons on Defendant Joseph Loonan is GRANTED. The unopposed Motion to Seal Ex. 25 is DENIED. (1)Compel arbitration & stay proceedings A petition to compel arbitration must include: (1) allegations demonstrating the existence of a written agreement to arbitrate the controversy; (2) the provisions of the written agreement and the paragraph of the arbitration clause set forth verbatim or a copy attached and incorporated by reference; and (3) allegations that a party to the agreement refuses to arbitrate. (Code Civ. Proc , CRC ) As applied to this agreement KPMG has identified a written agreement to arbitrate, provided the portions thereof that contain such provisions, and stated that despite request, Plaintiff has refused to arbitrate. KPMG is thus entitled to a determination on the merits of its claim. (2) to quash service on joseph loonan Plaintiff bears the burden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 570.) A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (Id., at 445.) A nonresident defendant may be subject to specific jurisdiction if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant s contacts with the forum, and (3) assertion of

42 personal jurisdiction would comport with concepts of fair play and substantial justice. (Vons, at 446; Burger King Corp. v. Rudzewicz (1985) 471 U.S. at ) Here, Plaintiff has not opposed the Motion. By failing to oppose, plaintiff creates an inference that the motion is meritorious. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 ( Plaintiffs did not oppose the County s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue. ); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (noting local rule in Los Angeles Superior Court that The failure to file opposition creates an inference that the motion or demurrer is meritorious. ). (3) to seal exhibit 25 per c.r.c & For the court to grant a motion to seal, the Court must expressly find that: 1. an overriding interest exists that overcomes the right of public access to the record; 2. the overriding interest supports sealing the records; 3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4. the proposed sealing is narrowly tailored; and 5. No less restrictive means exist to achieve the overriding interest. (C.R.C (d); McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988.) These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. [See NBC Subsidiary (KNBC TV), Inc. v. Sup.Ct. (Locke) (1999) 20 Cal.4th 1178, ; Huffy Corp. v. Sup.Ct. (Winterthur Swiss Ins. Co.) (2003) 112 Cal.App.4th 97, 104; People v. Jackson (2005) 128 Cal.App.4th 1009, in determining whether to seal records, courts must weigh constitutional requirements for disclosure against such factors as privacy rights] Here, although the Motion in unopposed, KPMG has not presented evidence sufficient to support these standards. First, KPMG claims in its Motion that the information it seeks to seal is confidential financial and proprietary information as to KPMG, and as to its partners finances, but it offers no explanation as to how or why this is so. (See Crisifulli Decl., filed with Petition to Compel Arbitration, at 14.) Second, KPMG has failed to make any attempt to explain what sort of information is contained in the PA that requires such protection, or how any of it is a trade secret. (Id. at 14.) Since it would appear that KPMG s privacy interests in the PA have diminished due to the passage of time. Finally, the version presented with the Motion is almost entirely redacted. Although the unredacted copy does contain some financial data (near the end), and there may still be some legitimate privacy concerns, it appears that KPMG redacted far more than was necessary to protect specific confidential terms or financial information. It is thus not clear that no less restrictive means would protect KPMG s interests. Nor is the [Proposed] Order submitted by KPMG appropriate, as it proposes to restrict access to Plaintiff s counsel, although Plaintiff is presently self-represented Morgan v. Hyatt Mr. Harper s Motion to File a First Amended Cross-Complaint is GRANTED. The Proposed FAXC shall be served and filed within 10 days.

43 A motion for leave to amend is proper and should be granted if said motion is timely made and the granting of that motion will not prejudice the opposing party. Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. In this instance, both factors appear to be satisfactorily met. Initially, while the KDF Defendants assert that Mr. Harper was dilatory in seeking this amendment, Mr. Harper has adequately shown that leave was sought at the earliest possible time, following the Court's finding that Mr. Harper was a member of Fillmore Review (a fact which is indisputably the catalyst for the subject amendments). ( 5 of Toffer Dec.; 2-4 of Supplemental Toffer Dec.). Secondly, the potential prejudice to the KDF Defendants is insufficient to justify denying Mr. Harper an opportunity to litigate his claims or requiring further judicial time and effort, to litigate a separate matter. While the KDF Defendants indicate that significant discovery will need to be completed, the second phase of trial is not scheduled until October. Thus, time remains to complete the necessary discovery. Further, to any extent that more time is needed, a brief trial continuance may be granted, to remedy this prejudice.

44 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 13, 2013 # Case Name Tentative Le v. Pham Motion re: Receiver s Final Account is GRANTED. The instant motion is granted, as the parties have failed to demonstrate that Mr. Mosier violated Court Orders or acted outside the scope of his authority. Additionally, there is nothing to demonstrate that Mr. Mosier acted in bad faith or caused any significant losses to Newland. Further, as this Court s January 30, 2013 Order required, only, the preparation of Newland s 2012 Tax Return, the Receiver is absolved of any obligation to file the return. Additionally, the Receiver s fees and costs are approved in the total amount of $104,286.78, which reflects a slight reduction based on excessive court appearances by Mr. Mosier and Mr. Baker having been unprepared on September 23, Finally, the Receiver is authorized to satisfy these fees through the assets of Newland and the remainder, by a 25/75 division, with the higher portion being paid by Plaintiffs, the parties who purchased NPI and benefitted the most from the receivership. City of Chula Vista v. Gutierrez (2012) 207 Cal.App.4 th 681, Grace v. v. Hendricks s The court GRANTS defendants two motions to strike in part, and DENIES them in part. Specifically, the court strikes the following from Case No : Re punitive damages: of $100,000 from Item e in the prayer to the 1 st and 2 nd causes of action, from Item b in the prayer of the 3 rd cause of action, and from Item c in the prayer of the 5 th cause of action; of $250,000 from Item b in the prayer of the 4 th cause of action. Re attorneys fees: all of Item a in the prayer to all causes of action, at p. 11, lines of the FAC. Here, plaintiff s request for attorney s fees is explicitly based on Section

45 of the Civil Code. By stipulating to delete the reference to Section , plaintiff appears to concede that Section does not apply in this case. Plaintiff however did not provide any basis to support a request for attorneys fees here. Notably, this action is not based on any contract, let alone any contract with an attorney s fee provision. Moreover, plaintiff (who is an attorney) is in pro per in this action. As such, there appears to be no basis for attorneys fees here. (See Trope v. Katz (1995) 11 Cal.4th 274, 280) [ [A]n attorney litigating in propria persona cannot be said to incur compensation for his time and his lost business opportunities. ].) As to Case No , the court strikes the following: Re punitive damages: of $100,000 from Items e in the prayer of the 1 st, 2 nd, 3 rd, and 5 th causes of action; and of $250,000 from Item b of the prayer of the 4 th cause of action. Re attorneys fees: all of Item a in the prayer to all causes of action, at p. 17, lines 8-9 of the FAC. Same as case The court denies the motion as to all other portions sought to be stricken. Defendants to answer the First Amended Complaints within 10 days Ocampo v OCK Corporation Motion to Vacate Default and Default Judgment is granted. The Court therefore vacates the judgment and orders Plaintiffs to amend the Complaint to add the damages in connection with the consultants, etc. Amended Complaint to be filed and served within 20 days and all defendants ordered to respond per code. Defendants to give notice. Plaintiff asserts that the court should summarily deny Defendant parents motion to again vacate the default judgment because they are just asking for another bite of the apple which this court has already denied. However, as discussed below this is not the same apple? The key issue here is not the improper rehashing of the fraud but the new issue of whether the complaint afforded the defaulting defendants adequate notice of the maximum judgment that could be assessed against them. If it did not as then the default judgment is void allowing this court to vacate that judgment to permit plaintiff to amend to seek that larger amount. Julius Schifaugh IV Consulting Service, Inc. v. Avaris Capital, Inc (2008) 164 CA4th 1393 which places the entire case back at issue allowing defendants to answer and to have their day in court. The Legal principles Defendants seek to vacate the default judgment on grounds of fairness and due process which are embodied in section 580 which controls and prescribes strictly how a default judgment is to be entered against a defaulting party. But as explained below a default judgment must be entered consistent with due process. In In re Marriage of Lippel, supra, 51 Cal.3d at p the Supreme Court explained how fairness and due process were implicated when section 580 was not strictly applied. It is fundamental to the concept of due process that a defendant is given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend... [A] defendant is not in a position to make such a decision if he or she has not been given full notice. ( In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.)

46 Following Lippel, the legal principle that controls is that Under section 580, except for personal injury and wrongful death cases, [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint... ( 580, subd. (a).) [T]he primary purpose of the section is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. ( Greenup v. Rodman (1986) 42 Cal.3d 822, 826; accord Becker v. S.P.V. Construction Co., Inc. (1980) 27 Cal.3d 489, 494 ( Becker ); Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1174 ( Electronic Funds ).) In other words, Section 580 ensure[s] that a defendant who declines to contest an action... [is] not subject[ed]... to open-ended liability and operates as a limitation on the court's jurisdiction. ( Stein v. York (2010) 181 Cal.App.4th 320, 325 ( Stein ).) So if when a default judgment awarded against a defendant exceeds the relief demanded in the complaint [citation], or is a different form of relief than that demanded in the complaint [citation], the defendant is effectively denied a fair hearing. ( Id. at p. 326.) Thus, a default judgment awarding damages in excess of the amount allowed under section 580 is not voidable as plaintiff claims but void and therefore beyond the court's jurisdiction. ( Matera v. McLeod (2006) 145 Cal.App.4th 44, 59; accord Greenup v. Rodman, supra, 42 Cal.3d at p. 826.) In deciding whether damages exceed the amount allowed courts must look to the prayer of the complaint or to allegations in the body of the complaint... ( People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667 ( Brar ); Parish v. Peters (1991) 1 Cal.App.4th 202, 216; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, ) Claimed damages therefore must be pled with specificity. [N]o matter how reasonable [a damage amount] might appear in a particular case... [if] no specific amount of damages is demanded, the prayer cannot insure adequate notice of the demands made by the defendant. [Citations.] If damages are alleged in the prayer as according to proof then [ To pass constitutional muster, the complaint must either allege a specific dollar amount of damages in the body or prayer... ] (cite omit) finally, the court has power to set aside a judgment that is void as a matter of law. CCP 473(d). There is no time limit on a collateral attack on a void judgment. Rochin v. Pat Johnson Mfg.Co. (1998) 67 CA4th 1228, With these principles in mind the court turns to the plaintiff s default judgment. Plaintiff s damage allegations do not support the principle award of $113,688. First, the Complaint s prayer sought general and compensatory damages in an amount according to proof at time of trial. However, in the 1 st c/a for Breach of Written Commercial Property Lease, the plaintiff specifically identifies the amount of damages for example, at 23: Plaintiffs have been damaged thereby in a sum in excess of $22, and at 24, Plaintiffs plead, Plaintiffs have been damaged thereby in a sum in excess of $84,970.00, the value of Plaintiffs equipment and property. These two specific sums if totaled would equal $107,470. But in 25, Plaintiffs allege Plaintiffs have been damaged in that they paid consultants, architects, and fees to obtain a Conditional Use Permit for the subject premises, all to their damage in an amount according to proof. The Default Judgment is for the principal amount of $113,688.00, plus pre-judgment interest of $15, and Court costs of $622.00, for a total judgment amount of $129,853.85, plus post-judgment interest at the legal rate. There is no specific sum attached in the prayer or the complaint to support an award of the difference between 107,470 and 113,688 which was the principle amount awarded against defendants. Viewed in context of the entire complaint, the failure in 25 of the complaint to specifically as in paragraphs 23 and 24 the amount sought was insufficient to fairly notify defendants that plaintiffs were seeking $6000 for defendant s contract breach. The default judgment is void.

47 Vegas Holding Corp. v. Knapp : The court DENIES defendant s motion to lift the stay to conduct certain discovery. Re plaintiff s evidentiary objections, the court OVERRULES plaintiff s objection No. 1, and SUSTAINS Nos (based on argumentative/improper opinion, speculative, hearsay, etc.) to the Curran Declaration; and OVERRULES plaintiff s objection No. 1, SUSTAINS Nos (argumentative/improper opinion, speculative, hearsay, lack of foundation) to the Knapp Declaration Defendant argues that there is a threat to the preservation of evidence but fails to proffer any evidence showing such. Rather, the arguments made appear to be the same ones made in defendant s unsuccessful opposition to plaintiffs motion to stay Saddleback Magnetic Resonance Imaging Center v. Saddleback Memorial Medical Center : Motion for attorney s fees is DENIED [a]ttorney fees should be awarded to the party who prevails on a petition to compel arbitration only when the resolution of that petition terminates the entire action on the contract. Thus, based on the above, as the instant action includes numerous claims under the contract, which have yet to be decided on the merits, this court cannot determine that petitioner is the prevailing party under the agreement, at this time. The motion for attorney s fees is denied as premature Hess v. Gordon Lane Healthcare, LLC Motion for Trial Setting Preference is GRANTED. C.C.P. 36(a) provides the following: A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Additionally, pursuant to C.C.P. 36(d), the Court may grant preference in its discretion, where medical documentation concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months. Further, pursuant to Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, [f]ailure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. Id. at Here, Plaintiff is an 82 year old man who suffers from dementia. His mental condition, including his memory of events, is deteriorating, making preparation for trial more difficult. 5, 6 of Declaration of Attorney Jennifer L. Turner. Protracted litigation herein will prejudice the Plaintiff. The

48 Declaration by Counsel in support of the motion suffices as evidence for this motion. An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Section 36. Code Civ. Proc., Plaintiff has demonstrated that he meets the requirements of C.C.P. 36(a) and, thus, is entitled to trial within 120 days of this hearing Orange County Transportation Authority v. Dobrott, Trustee The court GRANTS Plaintiff Orange County Transportation Authority s motion of plaintiff for prejudgment possession of property owned by Defendants. Plaintiff shall take possession of the portions of the designated property identified and set forth in Assessor Parcel Nos , identified in the Complaint and the court further orders removal therefrom all person, obstacles, improvements or structures of every kind of nature situated thereon. Plaintiff shall take possession of the property thirty (30) days after service of the order for possession. Plaintiff is to serve notice of this order Lee v. Ko Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part as follows: Defendants Motion for Judgment on the Pleadings is GRANTED, as to the Fifth and Seventh Causes of Action, with 10 days leave to amend. Defendants Motion is GRANTED as to the Sixth Cause of Action, without leave to amend. Lastly, Defendants Motion is DENIED as to the request for punitive damages. As an initial matter, this Court has discretion to hear the instant motion. Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4 th 13, 25; Stoops v. Abbassi (2002) 100 Cal.App.4 th 644, 651. Fifth Cause of Action: Fraudulent Transfer While Plaintiff alleges the value of the consideration Defendant Transferee received in the transfer was not reasonably equivalent to the value of the assets of the Transferor, ( 30 of SAC), this statement is nonsensical. Plaintiff has insufficiently alleged that HIGHKO transferred assets, without reasonable consideration. Further, while Plaintiff asserts that full permission and authority is sufficient to communicate intent by BCRK, Inc., this statement is unclear. Plaintiff s pleadings suggest, only, permission to transfer the assets. ( 29.1 of SAC). Regardless as permission and authority do not clearly communicate intent, this allegation is insufficient to state a claim. Sixth Cause of Action: Conspiracy Conspiracy is not a cause of action. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4 th 503, ; Additionally, this claim fails, as Plaintiff s SAC inconsistently alleges the conspiracy was formed after the alleged tortious act was committed ( 29 and 34 of SAC). Seventh Cause of Action: Assumption of Successor Liability

49 Defendants Motion for Judgment on the Pleadings, similarly, is granted as to the Seventh Cause of Action, as Assumption of Successor Liability is not a Cause of Action; rather, Plaintiff is given leave to plead this allegation, in relation to whichever specific claims, Plaintiff seeks to hold Defendants liable Greenberg v. KPMG LLP s (all 3 motions) Defendant KPMG s Petition to Compel Arbitration and Motion to Stay Proceedings is GRANTED. Upon entry of the orders set forth herein, the action shall be stayed under C.C.P pending completion of the arbitration. Plaintiff s unopposed request for judicial notice as to the two court records submitted, under Evidence Code 452(d) (court records), is GRANTED. Plaintiff s request for an Order requiring KPMG to fund the costs of the arbitration in full is DENIED. The unopposed Motion to Quash Service of Summons on Defendant Joseph Loonan is GRANTED. The unopposed Motion to Seal Ex. 25 is DENIED. (1)Compel arbitration & stay proceedings A petition to compel arbitration must include: (1) allegations demonstrating the existence of a written agreement to arbitrate the controversy; (2) the provisions of the written agreement and the paragraph of the arbitration clause set forth verbatim or a copy attached and incorporated by reference; and (3) allegations that a party to the agreement refuses to arbitrate. (Code Civ. Proc , CRC ) As applied to this agreement KPMG has identified a written agreement to arbitrate, provided the portions thereof that contain such provisions, and stated that despite request, Plaintiff has refused to arbitrate. KPMG is thus entitled to a determination on the merits of its claim. (2) to quash service on joseph loonan Plaintiff bears the burden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 570.) A nonresident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (Id., at 445.) A nonresident defendant may be subject to specific jurisdiction if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant s contacts with the forum, and (3) assertion of personal jurisdiction would comport with concepts of fair play and substantial justice. (Vons, at 446; Burger King Corp. v. Rudzewicz (1985) 471 U.S. at ) Here, Plaintiff has not opposed the Motion. By failing to oppose, plaintiff creates an inference that the motion is meritorious. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 ( Plaintiffs did not oppose the County s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue. ); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (noting local rule in Los Angeles Superior Court that The failure to file opposition creates an inference that the motion or demurrer is meritorious. ). (3) to seal exhibit 25 per c.r.c & For the court to grant a motion to seal, the Court must expressly find that:

50 1. an overriding interest exists that overcomes the right of public access to the record; 2. the overriding interest supports sealing the records; 3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4. the proposed sealing is narrowly tailored; and 5. No less restrictive means exist to achieve the overriding interest. (C.R.C (d); McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988.) These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. [See NBC Subsidiary (KNBC TV), Inc. v. Sup.Ct. (Locke) (1999) 20 Cal.4th 1178, ; Huffy Corp. v. Sup.Ct. (Winterthur Swiss Ins. Co.) (2003) 112 Cal.App.4th 97, 104; People v. Jackson (2005) 128 Cal.App.4th 1009, in determining whether to seal records, courts must weigh constitutional requirements for disclosure against such factors as privacy rights] Here, although the Motion in unopposed, KPMG has not presented evidence sufficient to support these standards. First, KPMG claims in its Motion that the information it seeks to seal is confidential financial and proprietary information as to KPMG, and as to its partners finances, but it offers no explanation as to how or why this is so. (See Crisifulli Decl., filed with Petition to Compel Arbitration, at 14.) Second, KPMG has failed to make any attempt to explain what sort of information is contained in the PA that requires such protection, or how any of it is a trade secret. (Id. at 14.) Since it would appear that KPMG s privacy interests in the PA have diminished due to the passage of time. Finally, the version presented with the Motion is almost entirely redacted. Although the unredacted copy does contain some financial data (near the end), and there may still be some legitimate privacy concerns, it appears that KPMG redacted far more than was necessary to protect specific confidential terms or financial information. It is thus not clear that no less restrictive means would protect KPMG s interests. Nor is the [Proposed] Order submitted by KPMG appropriate, as it proposes to restrict access to Plaintiff s counsel, although Plaintiff is presently self-represented Morgan v. Hyatt Mr. Harper s Motion to File a First Amended Cross-Complaint is GRANTED. The Proposed FAXC shall be served and filed within 10 days. A motion for leave to amend is proper and should be granted if said motion is timely made and the granting of that motion will not prejudice the opposing party. Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. In this instance, both factors appear to be satisfactorily met. Initially, while the KDF Defendants assert that Mr. Harper was dilatory in seeking this amendment, Mr. Harper has adequately shown that leave was sought at the earliest possible time, following the Court's finding that Mr. Harper was a member of Fillmore Review (a fact which is indisputably the catalyst for the subject amendments). ( 5 of Toffer Dec.; 2-4 of Supplemental Toffer Dec.). Secondly, the potential prejudice to the KDF Defendants is insufficient to justify denying Mr. Harper an opportunity to litigate his claims or requiring further judicial time and effort, to litigate a separate matter. While the KDF Defendants indicate that significant discovery will need to be completed, the second phase of trial is not scheduled until October. Thus, time remains to complete the necessary discovery. Further, to any extent that more time is needed, a brief trial continuance may be granted, to remedy this prejudice.

51 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 27, 2013 # Case Name Tentative Trudy K. Corbett v. AMICA Mutual Insurance Company Plaintiff s motion to untimely designate identify expert witnesses is GRANTED. [A]ny party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. CCP Here, applying the statutory requirements to grant relief the court Pursuant to Section finds that plaintiff s motion satisfies all of the conditions to warrant this delayed exchange: First, the reliance on the absence of a list of expert witness is not sufficient to deprive plaintiff of the opportunity to put on at trial expert witnesses. Second, there is no prejudice to defendant for the following reasons: 1. Defendant s ability to maintain the action or defenses thereto is not impacted. 2. The court has determined that the moving party did all of the following: A. Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. B. Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. C. Promptly thereafter served a copy of the proposed expert witness information described in Section on all other parties who have appeared in the action Inhale Inc v. Worldwide The Motion for Evidentiary Hearing is Denied.

52 Smoke Inc Havilah Hynes v. Avocado Pacific Communities LLC This motion is premature, and suffers from lack of any real authority enabling the court to grant the relief requested. CCP 187 is the only enabling statute cited to in the motion. CCP 187 gives the trial court the authority to amend a judgment to add additional judgment debtors. Here, Plaintiff is not asking the Court to amend any judgment, but is apparently asking the Court to prematurely rule Defendant Bard is the alter ego of Defendant Worldwide. Alter ego allegations are pled in the Complaint and should be determined on the merits. Defendants Motion to Compel Responses to Written Discovery is wellfounded, as Plaintiff s counsel has conceded. The Motion is GRANTED. Plaintiff is ordered to provide complete responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, without objection, and to produce any responsive documents, within 15 days. Sanctions in the amount of $1,290 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days. Defendants Motion for an Order that the Truth of the Matters be Admitted is also well-founded. Unless Plaintiff can present evidence by the time of the hearing that responses to the Requests for Admission have been served, and that such responses are in substantial compliance with C.C.P. Section , the Motion shall be GRANTED. In either event, sanctions in the amount of $890 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days Jeremy Nguyen v. Mega Capital Funding, Inc Unopposed Motion for Judgment on the Pleadings is granted with 15 days leave to amend based on the arguments raised in the motion. Defendant to give notice Asma Pouzbaris v. Prime Health Care, LLC Having now considered all of the briefs, including the supplemental briefing, Defendant s Motion for Summary Judgment is GRANTED. Plaintiff submitted an evidentiary objection as to argument in the Separate Statement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improper argument, which the Court has disregarded. However, as the Separate Statement is not evidence, the objection thereto is OVERRULED. On 5/30/13, the Motion for Summary Judgment filed by Defendant Prime Healthcare Services - Anaheim, LLP dba West Anaheim Medical Center came on for hearing. However, as review had just been granted for a case upon which Plaintiff had relied, the Court granted leave to file supplemental briefs, and continued the hearing to 6/27/13. Plaintiff timely filed Supplemental Opposition on 6/14/13. Plaintiff also belatedly filed a Supplemental Declaration on 6/21/13, which the Court has exercised its discretion to nonetheless consider. Defendant also filed a Supplemental Reply. The facts which are relevant to the application of are that alleged injury to Plaintiff occurred while she was a patient in Defendant s hospital, travelling without assistance or supervision between the bathroom and her hospital bed. She allegedly fell because the floor in her room was slippery. Boiled down plaintiff claims defendant hospital failed to ensure Plaintiff s safety while ambulatory in the hospital. Now adding the necessary time period it is undisputed that she fell on 6/15/10 and knew of the alleged

53 negligence at that time. (UF 1-5.) This action was not commenced until 6/11/12. Under these facts and plaintiff does not claim to the contrary this action is for professional negligence committed in the act of rendering services for which the hospital is licensed. The underlying rational of the applicable cases is that a hospital has a duty to use reasonable care and diligence in safeguarding a patient committed to its charge. So whether Plaintiff fell because she was not supervised or assisted on her trip to the restroom, or because a cleaning lady mopped her room while she was in the restroom is irrelevant for this analysis: in either event, the claim concerns Defendant s duties to take appropriate measures for patient safety, and concerns rendering of services for which Defendant is licensed. It is thus a claim for alleged professional negligence subject to Section (See e.g. Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as to Flores does not change the analysis. The controlling law is that this action is subject to Section under Murillo v. Good Samaritan Hospital of Anaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is one brought by a patient against a hospital for an alleged injury sustained in the course of the hospital s care for her it is a claim for professional negligence. Plaintiff contends that the court must apply a different based on Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiff urges that under Flowers, the test is whether the act complained of by plaintiff involves the manner in which professional services were rendered. (Supp. Opp., p. 6.) However, Flowers did not create any such test for evaluating statutory claims under MICRA: instead, Flowers specifically declined to draw a distinction between ordinary and professional negligence as it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at ; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is also incorrect in claiming that expert testimony is needed to decide whether C.C.P applies. While the manner of proof by which negligence can be established may require expert testimony, the character of the negligence claim does not. (Flowers, supra, at 1001.) James Lauro Trustee of the Joseph C. and Eleanor J. Lauro Family Trust, dated May 9, 1980 v. Lake Insurance Agency, Inc Sebastian Paz v. Magnolia School District The Demurrer to the Third and Fourth Causes of Action in the First Amended Complaint is OVERRULED. Defendant s Request for Judicial Notice is GRANTED in part but only as to Lake First Amended Complaint, the Notice of Bankruptcy Order Granting Motion for Relief from the Automatic Stay, and the Judgment entered in the prior action, but denies the request as to the balance of that file. Defendant has failed to establish that the requirements for either res judicata or collateral estoppel have been met here. Although both this action and the prior action concerned the same contract, the prior action did not request rescission, did not seek any determination as to what amounts were owed under that contract, and did not request any relief from any payment obligations set forth therein. In contrast, the action here seeks payment under the terms of the contract, which was not addressed or adjudicated in the prior action. In addition, because the prior judgment was obtained by default, it is not conclusive as to any defense or issue which was not raised in and is not necessary to uphold the default judgment. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v. English (1937) 9 Cal.2d 358, ) Plaintiff s Motion to Quash Subpoenas issued by Defendant to Children s

54 Israel Rodriguez v. Lawrence Micheals Hospital of Orange County is DENIED. California recognizes a right to privacy in medical records. Among other things, Article I, section 1 of the California Constitution provides that all people have certain inalienable rights, and among these are pursuing and obtaining safety, happiness, and privacy. Such privacy rights protect medical records pertaining to a patient's physical or mental condition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 ( Lantz ).) The Evidence Code also specifically recognizes a privilege for such records. (See Ev. Code 990 et seq. and 1010 et seq., which concern the physicianpatient and psychotherapist-patient privilege, respectively). To the extent that particular medical records are necessary to evaluate claims asserted by the patient, they are discoverable. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries or illnesses contributed to condition placed at issue by plaintiff, defendant was entitled to obtain information as to all such injuries or illnesses]; Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental and emotional condition by putting them at issue in the action: discovery related thereto was directly relevant to her claim and essential to a fair resolution of her suit: however, she did not, by initiating harassment and emotional distress claim, implicitly waive her privacy rights as to her sexual history so as to permit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309, [medical history as to petitioner's eyes was discoverable as relevant to causation: however, if petitioner was concerned that records would reveal other information, he could request an in camera inspection to segregate the irrelevant information]; see also Ev. Code 996(a) [privilege does not apply where patient put his or her physical condition at issue] and 1016(a) [privilege does not apply where patient put his or her mental condition at issue].) Here, Defendant has established good cause to access the subpoenaed medical records concerning Plaintiff, as Plaintiff has clearly put his mental and physical condition at issue in this litigation. He alleges in the Complaint that he has been identified as a special needs child whose special needs substantially limit many of his major life activities. (Complaint 2, 3.) He also alleges that, due to the alleged events, he has developed posttraumatic stress syndrome, acute stress disorder with hyper-vigilance irritability, social withdrawal, panic symptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff s medical records are thus clearly relevant to determine the extent to which his medical condition caused or contributed to the alleged harm. In addition, it appears undisputed that at least some of the records from CHOC were already disclosed to Defendant. (Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus established good cause to obtain the subpoenaed records. Demurrer to Answer is sustained with leave to amend, in its entirety There are no facts (let alone, sufficient facts) pled in support of any of the 25 Affirmative Defenses set forth in the Answer. CCP (a) Michele R. Ruiz v. Wells Fargo Bank, N.A. Demurrer to Complaint: Defendant s Demurrer is SUSTAINED, without leave to amend, as to the First through Fifth and Seventh Causes of Action. Defendant s Demurrer is SUSTAINED, with 15 days leave to amend, as to the Sixth Cause of Action. Defendant s Request for Judicial Notice is GRANTED. First, Second and Third Causes of Action: Fraud, Intentional

55 Misrepresentation and Negligent Misrepresentation Plaintiff s first three causes of action each rely on allegations that Defendant, during the origination of Plaintiff s loan, provided ledgers which misrepresented the terms. ( 28, 29, 32, 41 and 50). As origination occurred on May 30, 2007 ( 12) and the instant action was filed on April 18, 2013, nearly six years later, these claims appear to be barred. C.C.P. 338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or to demonstrate any manner in which the claim could be amended, leave to amend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, claims relating to the loan s negative amortization features and teaser rates, and failure to provide adjustable rate mortgage disclosure notice are preempted by 12 C.F.R (b)(4) and (b)(9). Id. at 913. Thus, as Plaintiff s allegations relate to the failure to make disclosures, expressly identified as preempted by 12 C.F.R (b), these claims fail. Fourth Cause of Action: Unconscionability: [T]here is no cause of action for unconscionability under section ; that doctrine is only a defense to contract enforcement. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, Fifth Cause of Action: Breach of Contract: The provision within the Deed of Trust, indicating that the document will be governed and construed under California law, is insufficient, as a matter of law, to incorporate all California statutes into the contract. Similarly, the provision which indicates that Plaintiff will pay all principal and interest due does not bar negative amortization. Thus, as Plaintiff has not pled breaches of the Deed of Trust, this claim fails. Sixth Cause of Action: Civil Code Plaintiff alleges Defendant violated Civil Code by failing to contact Plaintiff to discuss alternatives to foreclosure ( 80); however, Civil Code (g) provides that a Notice of Default may be filed pursuant to Civil Code 2924, regardless of a lender s failure to contact the borrower, provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. Thus, as the Complaint fails to include any allegations that Defendant failed to act with due diligence, Plaintiff has insufficiently stated a claim under this section; however, leave to amend may be granted as: (1) the Court cannot take judicial notice of the truth of the Declaration of Diligence, attached to the Notice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057, 1063; and (2) Civil Code is not preempted by HOLA. Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, Seventh Cause of Action: UCL Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009) 174 Cal.App.4 th 833, 841. Here, as Plaintiff s claim under the UCL is derivative of her remaining causes of action it fail as a matter of law. Finally, leave to amend is denied, as the only claim capable of amendment is the claim under Civil Code , which is insufficient to demonstrate standing to sue under the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4 th 1602, 1617.

56 Rector v. Lawyers Title Insurance Company This motion was originally set to be heard on 6/6 (and as of that date the motion was unopposed). Court continued the motion to today s date and ordered Clerk to give notice. Motion to Vacate Judgment is DENIED. The Request for JN is GRANTED. Plaintiff cites to CCP 473(b) and in support of his motion. Plaintiff fails to indicate how judgment was entered through his mistake, inadvertence, surprise or excusable neglect. If he did not know about the demurrer, certainly that was not due to his own mistake, etc., but rather Defense counsel. He fails to tell us why, if he did in fact know about the demurrer, he failed to oppose it and failed to appear at the hearing. In addition plaintiff fails to submit any other pleading, or in this case, the proposed opposition to that demurrer, which would convince this Court that it would have ruled differently. CCP 473(b). Further, he relies on CCP 473.5, apparently for the argument that he never received a copy of the demurrer and did not know it was on calendar for 1/31/2013. However, CCP is inapplicable because it applies to service of a summons, not a demurrer. Here, the demurrer was served to Plaintiff at Sally Avenue, Cerritos, CA. This was the address he himself provided on other court filed documents. It is obvious that defendants have submitted ample evidence that they served Plaintiff with the Demurrer and all the Notices of Continuances pertaining to the demurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if the POS lists the correct address, he did not receive notice of the demurrer, and the multiple subsequent notices of continuance pertaining to the demurrer Brown v. Carmax Auto Superstores Demurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiff shall file a First Amended Complaint, within 15 days of this order, which includes the documentary proof referenced in the Opposition. Pursuant to Civil Code 1794, the Song-Beverly Act allows for recovery, based on the breach of a service contract; however, as Plaintiff concedes the Complaint fails to allege or demonstrate that Defendants were obligated under the service contract, the Demurrer is sustained with leave to amend Benowitz v. Highwinds Capital, Inc The motion brought by Plaintiff Ari Benowitz to consolidate this action (Case No ) with the related action entitled Bandwidth Consulting, Inc. v. Benowitz et al (Case No ) is GRANTED. As this case has the lower number, this case (Case No ) is designated as the lead case. Moving party shall file a copy of the Order to Consolidate in both actions. Thereafter, all documents are to be filed with the caption and case number of the lead case, followed by the case number of the consolidated case, per C.R.C (d) First National Bank of Motion to Compel Deposition is GRANTED. Defendant Jason Barrette is

57 Omaha v. Barrette ordered to appear for Deposition at the office of the Dunning Law Firm, on a date to be determined at the hearing. Defendant is further ordered to produce documents responsive to the Amended Notice of Deposition. Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in the amount of $685.00, pursuant to C.C.P (c). "Good cause for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588. In this instance, Exhibits B and D of the Declaration of Mr. MacLeod demonstrate that Defendant was adequately served the subject Notice of Deposition and Amended Notice of Deposition, scheduling the Deposition for May 10, Additionally, the Declaration of Mr. MacLeod demonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiff that Defendant would not appear, due to his intention to exercise his 5 th Amendment rights against self-incrimination. ( 5 of MacLeod Dec.). Similarly, the Declaration indicates that Plaintiff s Counsel communicated with Defense Counsel, regarding this failure, as required by C.C.P (b)(2). Lastly, while Plaintiff s Motion does not set forth specific facts showing good cause, justifying the production of documents, a review of the requests (included in the Notice of Deposition), reveals that each request is clearly relevant and material to the issues in this litigation. For example, each request seeks information concerning the relevant account (on which the debt is owed) and communications between the parties. (Exhibit A and D ). As this information is included within the attachments to the Motion, C.C.P (b)(1) is met.

58 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 27, 2013 # Case Name Tentative Trudy K. Corbett v. AMICA Mutual Insurance Company Plaintiff s motion to untimely designate identify expert witnesses is GRANTED. [A]ny party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. CCP Here, applying the statutory requirements to grant relief the court Pursuant to Section finds that plaintiff s motion satisfies all of the conditions to warrant this delayed exchange: First, the reliance on the absence of a list of expert witness is not sufficient to deprive plaintiff of the opportunity to put on at trial expert witnesses. Second, there is no prejudice to defendant for the following reasons: 1. Defendant s ability to maintain the action or defenses thereto is not impacted. 2. The court has determined that the moving party did all of the following: A. Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. B. Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. C. Promptly thereafter served a copy of the proposed expert witness information described in Section on all other parties who have appeared in the action Inhale Inc v. Worldwide The Motion for Evidentiary Hearing is Denied.

59 Smoke Inc Havilah Hynes v. Avocado Pacific Communities LLC This motion is premature, and suffers from lack of any real authority enabling the court to grant the relief requested. CCP 187 is the only enabling statute cited to in the motion. CCP 187 gives the trial court the authority to amend a judgment to add additional judgment debtors. Here, Plaintiff is not asking the Court to amend any judgment, but is apparently asking the Court to prematurely rule Defendant Bard is the alter ego of Defendant Worldwide. Alter ego allegations are pled in the Complaint and should be determined on the merits. Defendants Motion to Compel Responses to Written Discovery is wellfounded, as Plaintiff s counsel has conceded. The Motion is GRANTED. Plaintiff is ordered to provide complete responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, without objection, and to produce any responsive documents, within 15 days. Sanctions in the amount of $1,290 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days. Defendants Motion for an Order that the Truth of the Matters be Admitted is also well-founded. Unless Plaintiff can present evidence by the time of the hearing that responses to the Requests for Admission have been served, and that such responses are in substantial compliance with C.C.P. Section , the Motion shall be GRANTED. In either event, sanctions in the amount of $890 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days Jeremy Nguyen v. Mega Capital Funding, Inc Unopposed Motion for Judgment on the Pleadings is granted with 15 days leave to amend based on the arguments raised in the motion. Defendant to give notice Asma Pouzbaris v. Prime Health Care, LLC Having now considered all of the briefs, including the supplemental briefing, Defendant s Motion for Summary Judgment is GRANTED. Plaintiff submitted an evidentiary objection as to argument in the Separate Statement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improper argument, which the Court has disregarded. However, as the Separate Statement is not evidence, the objection thereto is OVERRULED. On 5/30/13, the Motion for Summary Judgment filed by Defendant Prime Healthcare Services - Anaheim, LLP dba West Anaheim Medical Center came on for hearing. However, as review had just been granted for a case upon which Plaintiff had relied, the Court granted leave to file supplemental briefs, and continued the hearing to 6/27/13. Plaintiff timely filed Supplemental Opposition on 6/14/13. Plaintiff also belatedly filed a Supplemental Declaration on 6/21/13, which the Court has exercised its discretion to nonetheless consider. Defendant also filed a Supplemental Reply. The facts which are relevant to the application of are that alleged injury to Plaintiff occurred while she was a patient in Defendant s hospital, travelling without assistance or supervision between the bathroom and her hospital bed. She allegedly fell because the floor in her room was slippery. Boiled down plaintiff claims defendant hospital failed to ensure Plaintiff s safety while ambulatory in the hospital. Now adding the necessary time period it is undisputed that she fell on 6/15/10 and knew of the alleged

60 negligence at that time. (UF 1-5.) This action was not commenced until 6/11/12. Under these facts and plaintiff does not claim to the contrary this action is for professional negligence committed in the act of rendering services for which the hospital is licensed. The underlying rational of the applicable cases is that a hospital has a duty to use reasonable care and diligence in safeguarding a patient committed to its charge. So whether Plaintiff fell because she was not supervised or assisted on her trip to the restroom, or because a cleaning lady mopped her room while she was in the restroom is irrelevant for this analysis: in either event, the claim concerns Defendant s duties to take appropriate measures for patient safety, and concerns rendering of services for which Defendant is licensed. It is thus a claim for alleged professional negligence subject to Section (See e.g. Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as to Flores does not change the analysis. The controlling law is that this action is subject to Section under Murillo v. Good Samaritan Hospital of Anaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is one brought by a patient against a hospital for an alleged injury sustained in the course of the hospital s care for her it is a claim for professional negligence. Plaintiff contends that the court must apply a different based on Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiff urges that under Flowers, the test is whether the act complained of by plaintiff involves the manner in which professional services were rendered. (Supp. Opp., p. 6.) However, Flowers did not create any such test for evaluating statutory claims under MICRA: instead, Flowers specifically declined to draw a distinction between ordinary and professional negligence as it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at ; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is also incorrect in claiming that expert testimony is needed to decide whether C.C.P applies. While the manner of proof by which negligence can be established may require expert testimony, the character of the negligence claim does not. (Flowers, supra, at 1001.) James Lauro Trustee of the Joseph C. and Eleanor J. Lauro Family Trust, dated May 9, 1980 v. Lake Insurance Agency, Inc Sebastian Paz v. Magnolia School District The Demurrer to the Third and Fourth Causes of Action in the First Amended Complaint is OVERRULED. Defendant s Request for Judicial Notice is GRANTED in part but only as to Lake First Amended Complaint, the Notice of Bankruptcy Order Granting Motion for Relief from the Automatic Stay, and the Judgment entered in the prior action, but denies the request as to the balance of that file. Defendant has failed to establish that the requirements for either res judicata or collateral estoppel have been met here. Although both this action and the prior action concerned the same contract, the prior action did not request rescission, did not seek any determination as to what amounts were owed under that contract, and did not request any relief from any payment obligations set forth therein. In contrast, the action here seeks payment under the terms of the contract, which was not addressed or adjudicated in the prior action. In addition, because the prior judgment was obtained by default, it is not conclusive as to any defense or issue which was not raised in and is not necessary to uphold the default judgment. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v. English (1937) 9 Cal.2d 358, ) Plaintiff s Motion to Quash Subpoenas issued by Defendant to Children s

61 Israel Rodriguez v. Lawrence Micheals Hospital of Orange County is DENIED. California recognizes a right to privacy in medical records. Among other things, Article I, section 1 of the California Constitution provides that all people have certain inalienable rights, and among these are pursuing and obtaining safety, happiness, and privacy. Such privacy rights protect medical records pertaining to a patient's physical or mental condition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 ( Lantz ).) The Evidence Code also specifically recognizes a privilege for such records. (See Ev. Code 990 et seq. and 1010 et seq., which concern the physicianpatient and psychotherapist-patient privilege, respectively). To the extent that particular medical records are necessary to evaluate claims asserted by the patient, they are discoverable. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries or illnesses contributed to condition placed at issue by plaintiff, defendant was entitled to obtain information as to all such injuries or illnesses]; Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental and emotional condition by putting them at issue in the action: discovery related thereto was directly relevant to her claim and essential to a fair resolution of her suit: however, she did not, by initiating harassment and emotional distress claim, implicitly waive her privacy rights as to her sexual history so as to permit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309, [medical history as to petitioner's eyes was discoverable as relevant to causation: however, if petitioner was concerned that records would reveal other information, he could request an in camera inspection to segregate the irrelevant information]; see also Ev. Code 996(a) [privilege does not apply where patient put his or her physical condition at issue] and 1016(a) [privilege does not apply where patient put his or her mental condition at issue].) Here, Defendant has established good cause to access the subpoenaed medical records concerning Plaintiff, as Plaintiff has clearly put his mental and physical condition at issue in this litigation. He alleges in the Complaint that he has been identified as a special needs child whose special needs substantially limit many of his major life activities. (Complaint 2, 3.) He also alleges that, due to the alleged events, he has developed posttraumatic stress syndrome, acute stress disorder with hyper-vigilance irritability, social withdrawal, panic symptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff s medical records are thus clearly relevant to determine the extent to which his medical condition caused or contributed to the alleged harm. In addition, it appears undisputed that at least some of the records from CHOC were already disclosed to Defendant. (Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus established good cause to obtain the subpoenaed records. Demurrer to Answer is sustained with leave to amend, in its entirety There are no facts (let alone, sufficient facts) pled in support of any of the 25 Affirmative Defenses set forth in the Answer. CCP (a) Michele R. Ruiz v. Wells Fargo Bank, N.A. Demurrer to Complaint: Defendant s Demurrer is SUSTAINED, without leave to amend, as to the First through Fifth and Seventh Causes of Action. Defendant s Demurrer is SUSTAINED, with 15 days leave to amend, as to the Sixth Cause of Action. Defendant s Request for Judicial Notice is GRANTED. First, Second and Third Causes of Action: Fraud, Intentional

62 Misrepresentation and Negligent Misrepresentation Plaintiff s first three causes of action each rely on allegations that Defendant, during the origination of Plaintiff s loan, provided ledgers which misrepresented the terms. ( 28, 29, 32, 41 and 50). As origination occurred on May 30, 2007 ( 12) and the instant action was filed on April 18, 2013, nearly six years later, these claims appear to be barred. C.C.P. 338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or to demonstrate any manner in which the claim could be amended, leave to amend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, claims relating to the loan s negative amortization features and teaser rates, and failure to provide adjustable rate mortgage disclosure notice are preempted by 12 C.F.R (b)(4) and (b)(9). Id. at 913. Thus, as Plaintiff s allegations relate to the failure to make disclosures, expressly identified as preempted by 12 C.F.R (b), these claims fail. Fourth Cause of Action: Unconscionability: [T]here is no cause of action for unconscionability under section ; that doctrine is only a defense to contract enforcement. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, Fifth Cause of Action: Breach of Contract: The provision within the Deed of Trust, indicating that the document will be governed and construed under California law, is insufficient, as a matter of law, to incorporate all California statutes into the contract. Similarly, the provision which indicates that Plaintiff will pay all principal and interest due does not bar negative amortization. Thus, as Plaintiff has not pled breaches of the Deed of Trust, this claim fails. Sixth Cause of Action: Civil Code Plaintiff alleges Defendant violated Civil Code by failing to contact Plaintiff to discuss alternatives to foreclosure ( 80); however, Civil Code (g) provides that a Notice of Default may be filed pursuant to Civil Code 2924, regardless of a lender s failure to contact the borrower, provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. Thus, as the Complaint fails to include any allegations that Defendant failed to act with due diligence, Plaintiff has insufficiently stated a claim under this section; however, leave to amend may be granted as: (1) the Court cannot take judicial notice of the truth of the Declaration of Diligence, attached to the Notice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057, 1063; and (2) Civil Code is not preempted by HOLA. Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, Seventh Cause of Action: UCL Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009) 174 Cal.App.4 th 833, 841. Here, as Plaintiff s claim under the UCL is derivative of her remaining causes of action it fail as a matter of law. Finally, leave to amend is denied, as the only claim capable of amendment is the claim under Civil Code , which is insufficient to demonstrate standing to sue under the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4 th 1602, 1617.

63 Rector v. Lawyers Title Insurance Company This motion was originally set to be heard on 6/6 (and as of that date the motion was unopposed). Court continued the motion to today s date and ordered Clerk to give notice. Motion to Vacate Judgment is DENIED. The Request for JN is GRANTED. Plaintiff cites to CCP 473(b) and in support of his motion. Plaintiff fails to indicate how judgment was entered through his mistake, inadvertence, surprise or excusable neglect. If he did not know about the demurrer, certainly that was not due to his own mistake, etc., but rather Defense counsel. He fails to tell us why, if he did in fact know about the demurrer, he failed to oppose it and failed to appear at the hearing. In addition plaintiff fails to submit any other pleading, or in this case, the proposed opposition to that demurrer, which would convince this Court that it would have ruled differently. CCP 473(b). Further, he relies on CCP 473.5, apparently for the argument that he never received a copy of the demurrer and did not know it was on calendar for 1/31/2013. However, CCP is inapplicable because it applies to service of a summons, not a demurrer. Here, the demurrer was served to Plaintiff at Sally Avenue, Cerritos, CA. This was the address he himself provided on other court filed documents. It is obvious that defendants have submitted ample evidence that they served Plaintiff with the Demurrer and all the Notices of Continuances pertaining to the demurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if the POS lists the correct address, he did not receive notice of the demurrer, and the multiple subsequent notices of continuance pertaining to the demurrer Brown v. Carmax Auto Superstores Demurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiff shall file a First Amended Complaint, within 15 days of this order, which includes the documentary proof referenced in the Opposition. Pursuant to Civil Code 1794, the Song-Beverly Act allows for recovery, based on the breach of a service contract; however, as Plaintiff concedes the Complaint fails to allege or demonstrate that Defendants were obligated under the service contract, the Demurrer is sustained with leave to amend Benowitz v. Highwinds Capital, Inc The motion brought by Plaintiff Ari Benowitz to consolidate this action (Case No ) with the related action entitled Bandwidth Consulting, Inc. v. Benowitz et al (Case No ) is GRANTED. As this case has the lower number, this case (Case No ) is designated as the lead case. Moving party shall file a copy of the Order to Consolidate in both actions. Thereafter, all documents are to be filed with the caption and case number of the lead case, followed by the case number of the consolidated case, per C.R.C (d) First National Bank of Motion to Compel Deposition is GRANTED. Defendant Jason Barrette is

64 Omaha v. Barrette ordered to appear for Deposition at the office of the Dunning Law Firm, on a date to be determined at the hearing. Defendant is further ordered to produce documents responsive to the Amended Notice of Deposition. Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in the amount of $685.00, pursuant to C.C.P (c). "Good cause for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588. In this instance, Exhibits B and D of the Declaration of Mr. MacLeod demonstrate that Defendant was adequately served the subject Notice of Deposition and Amended Notice of Deposition, scheduling the Deposition for May 10, Additionally, the Declaration of Mr. MacLeod demonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiff that Defendant would not appear, due to his intention to exercise his 5 th Amendment rights against self-incrimination. ( 5 of MacLeod Dec.). Similarly, the Declaration indicates that Plaintiff s Counsel communicated with Defense Counsel, regarding this failure, as required by C.C.P (b)(2). Lastly, while Plaintiff s Motion does not set forth specific facts showing good cause, justifying the production of documents, a review of the requests (included in the Notice of Deposition), reveals that each request is clearly relevant and material to the issues in this litigation. For example, each request seeks information concerning the relevant account (on which the debt is owed) and communications between the parties. (Exhibit A and D ). As this information is included within the attachments to the Motion, C.C.P (b)(1) is met.

65 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 27, 2013 # Case Name Tentative Trudy K. Corbett v. AMICA Mutual Insurance Company Plaintiff s motion to untimely designate identify expert witnesses is GRANTED. [A]ny party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. CCP Here, applying the statutory requirements to grant relief the court Pursuant to Section finds that plaintiff s motion satisfies all of the conditions to warrant this delayed exchange: First, the reliance on the absence of a list of expert witness is not sufficient to deprive plaintiff of the opportunity to put on at trial expert witnesses. Second, there is no prejudice to defendant for the following reasons: 1. Defendant s ability to maintain the action or defenses thereto is not impacted. 2. The court has determined that the moving party did all of the following: A. Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. B. Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. C. Promptly thereafter served a copy of the proposed expert witness information described in Section on all other parties who have appeared in the action

66 Inhale Inc v. Worldwide Smoke Inc Havilah Hynes v. Avocado Pacific Communities LLC The Motion for Evidentiary Hearing is Denied. This motion is premature, and suffers from lack of any real authority enabling the court to grant the relief requested. CCP 187 is the only enabling statute cited to in the motion. CCP 187 gives the trial court the authority to amend a judgment to add additional judgment debtors. Here, Plaintiff is not asking the Court to amend any judgment, but is apparently asking the Court to prematurely rule Defendant Bard is the alter ego of Defendant Worldwide. Alter ego allegations are pled in the Complaint and should be determined on the merits. Defendants Motion to Compel Responses to Written Discovery is wellfounded, as Plaintiff s counsel has conceded. The Motion is GRANTED. Plaintiff is ordered to provide complete responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, without objection, and to produce any responsive documents, within 15 days. Sanctions in the amount of $1,290 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days. Defendants Motion for an Order that the Truth of the Matters be Admitted is also well-founded. Unless Plaintiff can present evidence by the time of the hearing that responses to the Requests for Admission have been served, and that such responses are in substantial compliance with C.C.P. Section , the Motion shall be GRANTED. In either event, sanctions in the amount of $890 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days Jeremy Nguyen v. Mega Capital Funding, Inc Unopposed Motion for Judgment on the Pleadings is granted with 15 days leave to amend based on the arguments raised in the motion. Defendant to give notice Asma Pouzbaris v. Prime Health Care, LLC Having now considered all of the briefs, including the supplemental briefing, Defendant s Motion for Summary Judgment is GRANTED. Plaintiff submitted an evidentiary objection as to argument in the Separate Statement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improper argument, which the Court has disregarded. However, as the Separate Statement is not evidence, the objection thereto is OVERRULED. On 5/30/13, the Motion for Summary Judgment filed by Defendant Prime Healthcare Services - Anaheim, LLP dba West Anaheim Medical Center came on for hearing. However, as review had just been granted for a case upon which Plaintiff had relied, the Court granted leave to file supplemental briefs, and continued the hearing to 6/27/13. Plaintiff timely filed Supplemental Opposition on 6/14/13. Plaintiff also belatedly filed a Supplemental Declaration on 6/21/13, which the Court has exercised its discretion to nonetheless consider. Defendant also filed a Supplemental Reply. The facts which are relevant to the application of are that alleged injury to Plaintiff occurred while she was a patient in Defendant s hospital, travelling without assistance or supervision between the bathroom and her hospital bed. She allegedly fell because the floor in her room was slippery. Boiled down plaintiff claims

67 defendant hospital failed to ensure Plaintiff s safety while ambulatory in the hospital. Now adding the necessary time period it is undisputed that she fell on 6/15/10 and knew of the alleged negligence at that time. (UF 1-5.) This action was not commenced until 6/11/12. Under these facts and plaintiff does not claim to the contrary this action is for professional negligence committed in the act of rendering services for which the hospital is licensed. The underlying rational of the applicable cases is that a hospital has a duty to use reasonable care and diligence in safeguarding a patient committed to its charge. So whether Plaintiff fell because she was not supervised or assisted on her trip to the restroom, or because a cleaning lady mopped her room while she was in the restroom is irrelevant for this analysis: in either event, the claim concerns Defendant s duties to take appropriate measures for patient safety, and concerns rendering of services for which Defendant is licensed. It is thus a claim for alleged professional negligence subject to Section (See e.g. Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as to Flores does not change the analysis. The controlling law is that this action is subject to Section under Murillo v. Good Samaritan Hospital of Anaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is one brought by a patient against a hospital for an alleged injury sustained in the course of the hospital s care for her it is a claim for professional negligence. Plaintiff contends that the court must apply a different based on Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiff urges that under Flowers, the test is whether the act complained of by plaintiff involves the manner in which professional services were rendered. (Supp. Opp., p. 6.) However, Flowers did not create any such test for evaluating statutory claims under MICRA: instead, Flowers specifically declined to draw a distinction between ordinary and professional negligence as it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at ; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is also incorrect in claiming that expert testimony is needed to decide whether C.C.P applies. While the manner of proof by which negligence can be established may require expert testimony, the character of the negligence claim does not. (Flowers, supra, at 1001.) James Lauro Trustee of the Joseph C. and Eleanor J. Lauro Family Trust, dated May 9, 1980 v. Lake Insurance Agency, Inc The Demurrer to the Third and Fourth Causes of Action in the First Amended Complaint is OVERRULED. Defendant s Request for Judicial Notice is GRANTED in part but only as to Lake First Amended Complaint, the Notice of Bankruptcy Order Granting Motion for Relief from the Automatic Stay, and the Judgment entered in the prior action, but denies the request as to the balance of that file. Defendant has failed to establish that the requirements for either res judicata or collateral estoppel have been met here. Although both this action and the prior action concerned the same contract, the prior action did not request rescission, did not seek any determination as to what amounts were owed under that contract, and did not request any relief from any payment obligations set forth therein. In contrast, the action here seeks payment under the terms of the contract, which was not addressed or adjudicated in the prior action. In addition, because the prior judgment was obtained by default, it is not conclusive as to any defense or issue which was not raised in and is not necessary to uphold the default judgment. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v. English

68 (1937) 9 Cal.2d 358, ) Sebastian Paz v. Magnolia School District Israel Rodriguez v. Lawrence Micheals Plaintiff s Motion to Quash Subpoenas issued by Defendant to Children s Hospital of Orange County is DENIED. California recognizes a right to privacy in medical records. Among other things, Article I, section 1 of the California Constitution provides that all people have certain inalienable rights, and among these are pursuing and obtaining safety, happiness, and privacy. Such privacy rights protect medical records pertaining to a patient's physical or mental condition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 ( Lantz ).) The Evidence Code also specifically recognizes a privilege for such records. (See Ev. Code 990 et seq. and 1010 et seq., which concern the physician-patient and psychotherapist-patient privilege, respectively). To the extent that particular medical records are necessary to evaluate claims asserted by the patient, they are discoverable. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries or illnesses contributed to condition placed at issue by plaintiff, defendant was entitled to obtain information as to all such injuries or illnesses]; Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental and emotional condition by putting them at issue in the action: discovery related thereto was directly relevant to her claim and essential to a fair resolution of her suit: however, she did not, by initiating harassment and emotional distress claim, implicitly waive her privacy rights as to her sexual history so as to permit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309, [medical history as to petitioner's eyes was discoverable as relevant to causation: however, if petitioner was concerned that records would reveal other information, he could request an in camera inspection to segregate the irrelevant information]; see also Ev. Code 996(a) [privilege does not apply where patient put his or her physical condition at issue] and 1016(a) [privilege does not apply where patient put his or her mental condition at issue].) Here, Defendant has established good cause to access the subpoenaed medical records concerning Plaintiff, as Plaintiff has clearly put his mental and physical condition at issue in this litigation. He alleges in the Complaint that he has been identified as a special needs child whose special needs substantially limit many of his major life activities. (Complaint 2, 3.) He also alleges that, due to the alleged events, he has developed post-traumatic stress syndrome, acute stress disorder with hyper-vigilance irritability, social withdrawal, panic symptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff s medical records are thus clearly relevant to determine the extent to which his medical condition caused or contributed to the alleged harm. In addition, it appears undisputed that at least some of the records from CHOC were already disclosed to Defendant. (Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus established good cause to obtain the subpoenaed records. Demurrer to Answer is sustained with leave to amend, in its entirety There are no facts (let alone, sufficient facts) pled in support of any of the 25 Affirmative Defenses set forth in the Answer. CCP (a)

69 Michele R. Ruiz v. Wells Fargo Bank, N.A. Demurrer to Complaint: Defendant s Demurrer is SUSTAINED, without leave to amend, as to the First through Fifth and Seventh Causes of Action. Defendant s Demurrer is SUSTAINED, with 15 days leave to amend, as to the Sixth Cause of Action. Defendant s Request for Judicial Notice is GRANTED. First, Second and Third Causes of Action: Fraud, Intentional Misrepresentation and Negligent Misrepresentation Plaintiff s first three causes of action each rely on allegations that Defendant, during the origination of Plaintiff s loan, provided ledgers which misrepresented the terms. ( 28, 29, 32, 41 and 50). As origination occurred on May 30, 2007 ( 12) and the instant action was filed on April 18, 2013, nearly six years later, these claims appear to be barred. C.C.P. 338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or to demonstrate any manner in which the claim could be amended, leave to amend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, claims relating to the loan s negative amortization features and teaser rates, and failure to provide adjustable rate mortgage disclosure notice are preempted by 12 C.F.R (b)(4) and (b)(9). Id. at 913. Thus, as Plaintiff s allegations relate to the failure to make disclosures, expressly identified as preempted by 12 C.F.R (b), these claims fail. Fourth Cause of Action: Unconscionability: [T]here is no cause of action for unconscionability under section ; that doctrine is only a defense to contract enforcement. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, Fifth Cause of Action: Breach of Contract: The provision within the Deed of Trust, indicating that the document will be governed and construed under California law, is insufficient, as a matter of law, to incorporate all California statutes into the contract. Similarly, the provision which indicates that Plaintiff will pay all principal and interest due does not bar negative amortization. Thus, as Plaintiff has not pled breaches of the Deed of Trust, this claim fails. Sixth Cause of Action: Civil Code Plaintiff alleges Defendant violated Civil Code by failing to contact Plaintiff to discuss alternatives to foreclosure ( 80); however, Civil Code (g) provides that a Notice of Default may be filed pursuant to Civil Code 2924, regardless of a lender s failure to contact the borrower, provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. Thus, as the Complaint fails to include any allegations that Defendant failed to act with due diligence, Plaintiff has insufficiently stated a claim under this section; however, leave to amend may be granted as: (1) the Court cannot take judicial notice of the truth of the Declaration of Diligence, attached to the Notice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057, 1063; and (2) Civil Code is not preempted by HOLA. Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, Seventh Cause of Action: UCL Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009)

70 174 Cal.App.4 th 833, 841. Here, as Plaintiff s claim under the UCL is derivative of her remaining causes of action it fail as a matter of law. Finally, leave to amend is denied, as the only claim capable of amendment is the claim under Civil Code , which is insufficient to demonstrate standing to sue under the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4 th 1602, Rector v. Lawyers Title Insurance Company This motion was originally set to be heard on 6/6 (and as of that date the motion was unopposed). Court continued the motion to today s date and ordered Clerk to give notice. Motion to Vacate Judgment is DENIED. The Request for JN is GRANTED. Plaintiff cites to CCP 473(b) and in support of his motion. Plaintiff fails to indicate how judgment was entered through his mistake, inadvertence, surprise or excusable neglect. If he did not know about the demurrer, certainly that was not due to his own mistake, etc., but rather Defense counsel. He fails to tell us why, if he did in fact know about the demurrer, he failed to oppose it and failed to appear at the hearing. In addition plaintiff fails to submit any other pleading, or in this case, the proposed opposition to that demurrer, which would convince this Court that it would have ruled differently. CCP 473(b). Further, he relies on CCP 473.5, apparently for the argument that he never received a copy of the demurrer and did not know it was on calendar for 1/31/2013. However, CCP is inapplicable because it applies to service of a summons, not a demurrer. Here, the demurrer was served to Plaintiff at Sally Avenue, Cerritos, CA. This was the address he himself provided on other court filed documents. It is obvious that defendants have submitted ample evidence that they served Plaintiff with the Demurrer and all the Notices of Continuances pertaining to the demurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if the POS lists the correct address, he did not receive notice of the demurrer, and the multiple subsequent notices of continuance pertaining to the demurrer Brown v. Carmax Auto Superstores Demurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiff shall file a First Amended Complaint, within 15 days of this order, which includes the documentary proof referenced in the Opposition. Pursuant to Civil Code 1794, the Song-Beverly Act allows for recovery, based on the breach of a service contract; however, as Plaintiff concedes the Complaint fails to allege or demonstrate that Defendants were obligated under the service contract, the Demurrer is sustained with leave to amend Benowitz v. Highwinds Capital, Inc The motion brought by Plaintiff Ari Benowitz to consolidate this action (Case No ) with the related action entitled

71 Bandwidth Consulting, Inc. v. Benowitz et al (Case No ) is GRANTED. As this case has the lower number, this case (Case No ) is designated as the lead case. Moving party shall file a copy of the Order to Consolidate in both actions. Thereafter, all documents are to be filed with the caption and case number of the lead case, followed by the case number of the consolidated case, per C.R.C (d) First National Bank of Omaha v. Barrette Motion to Compel Deposition is GRANTED. Defendant Jason Barrette is ordered to appear for Deposition at the office of the Dunning Law Firm, on a date to be determined at the hearing. Defendant is further ordered to produce documents responsive to the Amended Notice of Deposition. Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in the amount of $685.00, pursuant to C.C.P (c). "Good cause for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588. In this instance, Exhibits B and D of the Declaration of Mr. MacLeod demonstrate that Defendant was adequately served the subject Notice of Deposition and Amended Notice of Deposition, scheduling the Deposition for May 10, Additionally, the Declaration of Mr. MacLeod demonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiff that Defendant would not appear, due to his intention to exercise his 5 th Amendment rights against self-incrimination. ( 5 of MacLeod Dec.). Similarly, the Declaration indicates that Plaintiff s Counsel communicated with Defense Counsel, regarding this failure, as required by C.C.P (b)(2). Lastly, while Plaintiff s Motion does not set forth specific facts showing good cause, justifying the production of documents, a review of the requests (included in the Notice of Deposition), reveals that each request is clearly relevant and material to the issues in this litigation. For example, each request seeks information concerning the relevant account (on which the debt is owed) and communications between the parties. (Exhibit A and D ). As this information is included within the attachments to the Motion, C.C.P (b)(1) is met.

72 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. June 27, 2013 # Case Name Tentative Trudy K. Corbett v. AMICA Mutual Insurance Company Plaintiff s motion to untimely designate identify expert witnesses is GRANTED. [A]ny party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. CCP Here, applying the statutory requirements to grant relief the court Pursuant to Section finds that plaintiff s motion satisfies all of the conditions to warrant this delayed exchange: First, the reliance on the absence of a list of expert witness is not sufficient to deprive plaintiff of the opportunity to put on at trial expert witnesses. Second, there is no prejudice to defendant for the following reasons: 1. Defendant s ability to maintain the action or defenses thereto is not impacted. 2. The court has determined that the moving party did all of the following: A. Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. B. Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. C. Promptly thereafter served a copy of the proposed expert witness information described in Section on all other parties who have appeared in the action

73 Inhale Inc v. Worldwide Smoke Inc Havilah Hynes v. Avocado Pacific Communities LLC The Motion for Evidentiary Hearing is Denied. This motion is premature, and suffers from lack of any real authority enabling the court to grant the relief requested. CCP 187 is the only enabling statute cited to in the motion. CCP 187 gives the trial court the authority to amend a judgment to add additional judgment debtors. Here, Plaintiff is not asking the Court to amend any judgment, but is apparently asking the Court to prematurely rule Defendant Bard is the alter ego of Defendant Worldwide. Alter ego allegations are pled in the Complaint and should be determined on the merits. Defendants Motion to Compel Responses to Written Discovery is wellfounded, as Plaintiff s counsel has conceded. The Motion is GRANTED. Plaintiff is ordered to provide complete responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, without objection, and to produce any responsive documents, within 15 days. Sanctions in the amount of $1,290 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days. Defendants Motion for an Order that the Truth of the Matters be Admitted is also well-founded. Unless Plaintiff can present evidence by the time of the hearing that responses to the Requests for Admission have been served, and that such responses are in substantial compliance with C.C.P. Section , the Motion shall be GRANTED. In either event, sanctions in the amount of $890 are awarded on this Motion against counsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within 20 days Jeremy Nguyen v. Mega Capital Funding, Inc Unopposed Motion for Judgment on the Pleadings is granted with 15 days leave to amend based on the arguments raised in the motion. Defendant to give notice Asma Pouzbaris v. Prime Health Care, LLC Having now considered all of the briefs, including the supplemental briefing, Defendant s Motion for Summary Judgment is GRANTED. Plaintiff submitted an evidentiary objection as to argument in the Separate Statement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improper argument, which the Court has disregarded. However, as the Separate Statement is not evidence, the objection thereto is OVERRULED. On 5/30/13, the Motion for Summary Judgment filed by Defendant Prime Healthcare Services - Anaheim, LLP dba West Anaheim Medical Center came on for hearing. However, as review had just been granted for a case upon which Plaintiff had relied, the Court granted leave to file supplemental briefs, and continued the hearing to 6/27/13. Plaintiff timely filed Supplemental Opposition on 6/14/13. Plaintiff also belatedly filed a Supplemental Declaration on 6/21/13, which the Court has exercised its discretion to nonetheless consider. Defendant also filed a Supplemental Reply. The facts which are relevant to the application of are that alleged injury to Plaintiff occurred while she was a patient in Defendant s hospital, travelling without assistance or supervision between the bathroom and her hospital bed. She allegedly fell because the floor in her room was slippery. Boiled down plaintiff claims

74 defendant hospital failed to ensure Plaintiff s safety while ambulatory in the hospital. Now adding the necessary time period it is undisputed that she fell on 6/15/10 and knew of the alleged negligence at that time. (UF 1-5.) This action was not commenced until 6/11/12. Under these facts and plaintiff does not claim to the contrary this action is for professional negligence committed in the act of rendering services for which the hospital is licensed. The underlying rational of the applicable cases is that a hospital has a duty to use reasonable care and diligence in safeguarding a patient committed to its charge. So whether Plaintiff fell because she was not supervised or assisted on her trip to the restroom, or because a cleaning lady mopped her room while she was in the restroom is irrelevant for this analysis: in either event, the claim concerns Defendant s duties to take appropriate measures for patient safety, and concerns rendering of services for which Defendant is licensed. It is thus a claim for alleged professional negligence subject to Section (See e.g. Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as to Flores does not change the analysis. The controlling law is that this action is subject to Section under Murillo v. Good Samaritan Hospital of Anaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is one brought by a patient against a hospital for an alleged injury sustained in the course of the hospital s care for her it is a claim for professional negligence. Plaintiff contends that the court must apply a different based on Flowers v. Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiff urges that under Flowers, the test is whether the act complained of by plaintiff involves the manner in which professional services were rendered. (Supp. Opp., p. 6.) However, Flowers did not create any such test for evaluating statutory claims under MICRA: instead, Flowers specifically declined to draw a distinction between ordinary and professional negligence as it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at ; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is also incorrect in claiming that expert testimony is needed to decide whether C.C.P applies. While the manner of proof by which negligence can be established may require expert testimony, the character of the negligence claim does not. (Flowers, supra, at 1001.) James Lauro Trustee of the Joseph C. and Eleanor J. Lauro Family Trust, dated May 9, 1980 v. Lake Insurance Agency, Inc The Demurrer to the Third and Fourth Causes of Action in the First Amended Complaint is OVERRULED. Defendant s Request for Judicial Notice is GRANTED in part but only as to Lake First Amended Complaint, the Notice of Bankruptcy Order Granting Motion for Relief from the Automatic Stay, and the Judgment entered in the prior action, but denies the request as to the balance of that file. Defendant has failed to establish that the requirements for either res judicata or collateral estoppel have been met here. Although both this action and the prior action concerned the same contract, the prior action did not request rescission, did not seek any determination as to what amounts were owed under that contract, and did not request any relief from any payment obligations set forth therein. In contrast, the action here seeks payment under the terms of the contract, which was not addressed or adjudicated in the prior action. In addition, because the prior judgment was obtained by default, it is not conclusive as to any defense or issue which was not raised in and is not necessary to uphold the default judgment. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v. English

75 (1937) 9 Cal.2d 358, ) Sebastian Paz v. Magnolia School District Israel Rodriguez v. Lawrence Micheals Plaintiff s Motion to Quash Subpoenas issued by Defendant to Children s Hospital of Orange County is DENIED. California recognizes a right to privacy in medical records. Among other things, Article I, section 1 of the California Constitution provides that all people have certain inalienable rights, and among these are pursuing and obtaining safety, happiness, and privacy. Such privacy rights protect medical records pertaining to a patient's physical or mental condition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853 ( Lantz ).) The Evidence Code also specifically recognizes a privilege for such records. (See Ev. Code 990 et seq. and 1010 et seq., which concern the physician-patient and psychotherapist-patient privilege, respectively). To the extent that particular medical records are necessary to evaluate claims asserted by the patient, they are discoverable. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries or illnesses contributed to condition placed at issue by plaintiff, defendant was entitled to obtain information as to all such injuries or illnesses]; Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental and emotional condition by putting them at issue in the action: discovery related thereto was directly relevant to her claim and essential to a fair resolution of her suit: however, she did not, by initiating harassment and emotional distress claim, implicitly waive her privacy rights as to her sexual history so as to permit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309, [medical history as to petitioner's eyes was discoverable as relevant to causation: however, if petitioner was concerned that records would reveal other information, he could request an in camera inspection to segregate the irrelevant information]; see also Ev. Code 996(a) [privilege does not apply where patient put his or her physical condition at issue] and 1016(a) [privilege does not apply where patient put his or her mental condition at issue].) Here, Defendant has established good cause to access the subpoenaed medical records concerning Plaintiff, as Plaintiff has clearly put his mental and physical condition at issue in this litigation. He alleges in the Complaint that he has been identified as a special needs child whose special needs substantially limit many of his major life activities. (Complaint 2, 3.) He also alleges that, due to the alleged events, he has developed post-traumatic stress syndrome, acute stress disorder with hyper-vigilance irritability, social withdrawal, panic symptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff s medical records are thus clearly relevant to determine the extent to which his medical condition caused or contributed to the alleged harm. In addition, it appears undisputed that at least some of the records from CHOC were already disclosed to Defendant. (Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus established good cause to obtain the subpoenaed records. Demurrer to Answer is sustained with leave to amend, in its entirety There are no facts (let alone, sufficient facts) pled in support of any of the 25 Affirmative Defenses set forth in the Answer. CCP (a)

76 Michele R. Ruiz v. Wells Fargo Bank, N.A. Demurrer to Complaint: Defendant s Demurrer is SUSTAINED, without leave to amend, as to the First through Fifth and Seventh Causes of Action. Defendant s Demurrer is SUSTAINED, with 15 days leave to amend, as to the Sixth Cause of Action. Defendant s Request for Judicial Notice is GRANTED. First, Second and Third Causes of Action: Fraud, Intentional Misrepresentation and Negligent Misrepresentation Plaintiff s first three causes of action each rely on allegations that Defendant, during the origination of Plaintiff s loan, provided ledgers which misrepresented the terms. ( 28, 29, 32, 41 and 50). As origination occurred on May 30, 2007 ( 12) and the instant action was filed on April 18, 2013, nearly six years later, these claims appear to be barred. C.C.P. 338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or to demonstrate any manner in which the claim could be amended, leave to amend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, claims relating to the loan s negative amortization features and teaser rates, and failure to provide adjustable rate mortgage disclosure notice are preempted by 12 C.F.R (b)(4) and (b)(9). Id. at 913. Thus, as Plaintiff s allegations relate to the failure to make disclosures, expressly identified as preempted by 12 C.F.R (b), these claims fail. Fourth Cause of Action: Unconscionability: [T]here is no cause of action for unconscionability under section ; that doctrine is only a defense to contract enforcement. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, Fifth Cause of Action: Breach of Contract: The provision within the Deed of Trust, indicating that the document will be governed and construed under California law, is insufficient, as a matter of law, to incorporate all California statutes into the contract. Similarly, the provision which indicates that Plaintiff will pay all principal and interest due does not bar negative amortization. Thus, as Plaintiff has not pled breaches of the Deed of Trust, this claim fails. Sixth Cause of Action: Civil Code Plaintiff alleges Defendant violated Civil Code by failing to contact Plaintiff to discuss alternatives to foreclosure ( 80); however, Civil Code (g) provides that a Notice of Default may be filed pursuant to Civil Code 2924, regardless of a lender s failure to contact the borrower, provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. Thus, as the Complaint fails to include any allegations that Defendant failed to act with due diligence, Plaintiff has insufficiently stated a claim under this section; however, leave to amend may be granted as: (1) the Court cannot take judicial notice of the truth of the Declaration of Diligence, attached to the Notice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057, 1063; and (2) Civil Code is not preempted by HOLA. Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, Seventh Cause of Action: UCL Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009)

77 174 Cal.App.4 th 833, 841. Here, as Plaintiff s claim under the UCL is derivative of her remaining causes of action it fail as a matter of law. Finally, leave to amend is denied, as the only claim capable of amendment is the claim under Civil Code , which is insufficient to demonstrate standing to sue under the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4 th 1602, Rector v. Lawyers Title Insurance Company This motion was originally set to be heard on 6/6 (and as of that date the motion was unopposed). Court continued the motion to today s date and ordered Clerk to give notice. Motion to Vacate Judgment is DENIED. The Request for JN is GRANTED. Plaintiff cites to CCP 473(b) and in support of his motion. Plaintiff fails to indicate how judgment was entered through his mistake, inadvertence, surprise or excusable neglect. If he did not know about the demurrer, certainly that was not due to his own mistake, etc., but rather Defense counsel. He fails to tell us why, if he did in fact know about the demurrer, he failed to oppose it and failed to appear at the hearing. In addition plaintiff fails to submit any other pleading, or in this case, the proposed opposition to that demurrer, which would convince this Court that it would have ruled differently. CCP 473(b). Further, he relies on CCP 473.5, apparently for the argument that he never received a copy of the demurrer and did not know it was on calendar for 1/31/2013. However, CCP is inapplicable because it applies to service of a summons, not a demurrer. Here, the demurrer was served to Plaintiff at Sally Avenue, Cerritos, CA. This was the address he himself provided on other court filed documents. It is obvious that defendants have submitted ample evidence that they served Plaintiff with the Demurrer and all the Notices of Continuances pertaining to the demurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if the POS lists the correct address, he did not receive notice of the demurrer, and the multiple subsequent notices of continuance pertaining to the demurrer Brown v. Carmax Auto Superstores Demurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiff shall file a First Amended Complaint, within 15 days of this order, which includes the documentary proof referenced in the Opposition. Pursuant to Civil Code 1794, the Song-Beverly Act allows for recovery, based on the breach of a service contract; however, as Plaintiff concedes the Complaint fails to allege or demonstrate that Defendants were obligated under the service contract, the Demurrer is sustained with leave to amend Benowitz v. Highwinds Capital, Inc The motion brought by Plaintiff Ari Benowitz to consolidate this action (Case No ) with the related action entitled

78 Bandwidth Consulting, Inc. v. Benowitz et al (Case No ) is GRANTED. As this case has the lower number, this case (Case No ) is designated as the lead case. Moving party shall file a copy of the Order to Consolidate in both actions. Thereafter, all documents are to be filed with the caption and case number of the lead case, followed by the case number of the consolidated case, per C.R.C (d) First National Bank of Omaha v. Barrette Motion to Compel Deposition is GRANTED. Defendant Jason Barrette is ordered to appear for Deposition at the office of the Dunning Law Firm, on a date to be determined at the hearing. Defendant is further ordered to produce documents responsive to the Amended Notice of Deposition. Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in the amount of $685.00, pursuant to C.C.P (c). "Good cause for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588. In this instance, Exhibits B and D of the Declaration of Mr. MacLeod demonstrate that Defendant was adequately served the subject Notice of Deposition and Amended Notice of Deposition, scheduling the Deposition for May 10, Additionally, the Declaration of Mr. MacLeod demonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiff that Defendant would not appear, due to his intention to exercise his 5 th Amendment rights against self-incrimination. ( 5 of MacLeod Dec.). Similarly, the Declaration indicates that Plaintiff s Counsel communicated with Defense Counsel, regarding this failure, as required by C.C.P (b)(2). Lastly, while Plaintiff s Motion does not set forth specific facts showing good cause, justifying the production of documents, a review of the requests (included in the Notice of Deposition), reveals that each request is clearly relevant and material to the issues in this litigation. For example, each request seeks information concerning the relevant account (on which the debt is owed) and communications between the parties. (Exhibit A and D ). As this information is included within the attachments to the Motion, C.C.P (b)(1) is met.

79 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. July 25, 2013 # Case Name Tentative Grace v. Hendricks The court DENIES Defendant Mary Ann Maiullari s motion to compel Plaintiff Patricia J. Grace to further respond to special interrogatories. However, the court reminds attorney that her opposition brief exceeded the maximum length permitted by Cal. Rules of Court, rule , subd. (d), without leave of the court. While the court exercises its discretion to consider the opposition brief on its merit, all parties are strongly admonished to strictly comply with Rule in the future. As to the merits of the motion it has none. Instead it appears again that Maiullari is attempting to avoid the consequences of having failed to previously move to compel further responses to her form interrogatories. The court awards monetary sanctions against Maiullari in the sum of $102.85, to be paid within 15 days after service of notice of this order. Grace is to serve notice of this order T.D. Service Company v. Kaczmarek Le v. Watkins To promote Judicial economy the court on its own motion continues Wells Fargo s demurrer/motion to strike to 08/08/13, so as to be heard at the same time as Citimortgage s motions. Demurrer to the Cross-Complaint is SUSTAINED in its entirety with 20 days leave to amend. The untimely opposition by Cross-Complainant Ashton Watkins was not considered by the Court. Although it is clear Watkins represented Pham and Newland in underlying actions relating to the Les and Hoang, it is unclear how those individuals can now be liable to Watkins for fees incurred in connection with those underlying lawsuits based on the causes of action pled. Specifically, Cross-Complainant pleads that Newland s assets and debts were assumed by plaintiffs, but fails to

80 define plaintiffs and fails to plead why, the individuals would be charged with the debts of the corporation Ryan v. JP Morgan Chase Bank N.A Kattan v. Martin Defendant JP Morgan Chase Bank s Demurrer to both of the causes of action in Plaintiffs First Amended Complaint is SUSTAINED without leave to Amend. Plaintiff failed to file an opposition to the demurrer and the arguments made by Defendant are generally well-taken, as defendant had no duty to grant a loan modification, Plaintiff has not alleged tender, Plaintiff has not identified any actionable promise not performed, reasonable reliance, or resulting injury, and Plaintiff has acknowledged in her FAC that she failed to perform under the loan contract. Further, as the plaintiff failed to file any Opposition. The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Finally, the FAC fails to show how under any possible legal theory plaintiff could amend to state a valid cause of action. s (1) Demurrer to Complaint filed by Defendant Martin: SUSTAINED, in its entirety, with 15 days leave to amend. Pursuant to Lippert v. Bailey (1966) 241 Cal.App.2d 376, Plaintiff s claims are barred against Defendant Martin, as the Complaint concedes that Martin acted at all times within the scope of his agency. Id. at 382; ( 3 and 12 of Complaint). Leave to amend is granted, however, to provide Plaintiffs an opportunity to clarify if any conduct occurred outside this agency. Similarly, pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, the claim for Negligence fails, as all of the alleged breaches imply an obligation to volunteer and/or recommend additional coverage. Id. at 927; of Complaint. Finally, the claim for Fraud fails for lack of specificity. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; ( 72 of Complaint). (2) Motion to Strike filed by Defendant Martin: GRANTED, with 15 days leave to amend, as Plaintiffs failed to provide a statute, which allows for recovery of attorney s fees in this context. (3) Demurrer to Complaint filed by Defendant State Farm: SUSTAINED, in its entirety, with 15 days leave to amend. Again pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, the claim for Negligence fails, as all of the alleged breaches imply an obligation to volunteer and/or recommend additional coverage. Id. at 927; of Complaint. Also the claim for Estoppel fails as Plaintiffs do not allege Mr. Martin misrepresented the terms of their coverage. Harford Fire Ins. Co. v.spartan Realty International, Inc. (1987) 196 Cal.App.3d As to plaintiff s claim for Reformation it fails as no facts are pled that plaintiffs requested insurance to cover a rental property, or that Mr. Martin intended to provide insurance with this coverage. Regarding the claim for Breach of Contract the Complaint admits that plaintiff s Insurance Policy did not provide coverage for the specific loss suffered ( 57 (j) of Complaint). Thus despite plaintiff pleading that Defendant breached the terms of the agreement by failing to investigate Mr. Martin's negligence and/or the application of estoppel, there is no support or authority that this conduct was contractually

81 required. Similarly, as no coverage was due, the claim for Breach of the Implied Covenant fails. Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4 th 1, 36. Finally, the claim for Fraud fails for lack of specificity. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; ( 72 of Complaint) David v. Prime Builders Motion for Leave to Amend is GRANTED. Plaintiff to separately file the First Amended Complaint and serve on all parties affected thereby. MP to give notice. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading... [CCP 473(a)(1) (emphasis added); and see CCP 576]. Here, the delay in obtaining the information was adequately explained in both the moving papers and the reply. For example, although the deposition of the PMK was noticed in March, the deposition was not taken until May 24, Regarding prejudice it would be to the newly added defendants. However, this may be mitigated by continuing the trial date Chae v. Nguyen The Motion for Leave to Augment Expert Witness List to Add Robert Trout is DENIED What jumps out at the court with Nguyen s motion is that the discovery deadline had long passed before he attempted to augment his expert designation on 6/26/13, and before he filed the instant motion on 7/12/13. Why is this significant because under C.C.P (3)(c), to grant the Motion the court must determine either that: (a) Nguyen would not in the exercise of reasonable diligence have timely decided to call Mr. Trout, or (b) Nguyen s failure to timely decide to call Mr. Trout was the result of mistake, inadvertence, surprise, or excusable neglect, and Nguyen promptly made the motion and served a copy of the proposed expert witness information concerning the expert or the testimony after discovering same. In other words as required by statute Nguyen must proffer exceptional circumstances. CCP Here the court finds that Nguyen has not made any attempt to argue that in the exercise of reasonable diligence he would not have timely decided to call Mr. Trout. Instead, he claims that his failure to timely designate Mr. Trout was the result of counsel s mistake in assuming that cut-off dates had been continued along with the trial, and not realizing until late May that his testimony would be necessary. (Zotti Reply Decl., 2-6.) However, as to the two prior continuances neither extended the discovery deadline. Thus, Neither claim presents a compelling basis for relief under the exceptions set forth in CCP Nor does Nguyen offer any authority to suggest otherwise.

82

83 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. August 1, 2013 # Case Name Tentative th Street Investors, LLC v. HPV Technologies, Inc. C/W The Motion to Lift the Stay of Litigation is DENIED. And (1) need for past rent On the issue of past due rent, the court points out that Mr. Stenson, within the frequently referenced letter provided as Exhibit 11 to the Sybert Declaration, concedes this issue has been resolved. Specifically, Mr. Stenson states: Although it has since been resolved with Messrs. Hamilton and Simidian and their counsel Joey Moore, Mr. Moore had previously attempted to utilize the Stay to enable HPV to enjoy the benefits of the judicial reformation of the HPV Lease for Building C... [Page 6 of Exhibit 11 of the Sybert Dec.] Additionally, Mr. Stenson admits after strenuous negotiations.did HPV begin paying all of the rent that is due pursuant to the Building C lease. [Id.] In light of this testimony there is no immediate need for a determination, within the action for reformation. (2) The need to Resolve this action to facilitate dissolution On March 7, 2013 the parties filed a Joint Statement, wherein all parties agreed the stay should remain in effect until 30 days after the sale of Building C. Thus, although similar problems in dissolution would have existed in March, the parties agreed these issues were insufficient to justify removing the stay. Why should the court revisit this prior agreement and 16 th Street offers no pressing need to do so. Additionally, Mr. Stenson again admits that [m]any of [his] obligations related to the dissolution of the Company pursuant to the Dissolution Decree cannot commence until the sale of Building C has

84 closed. (Page 3 of Exhibit 11 of Sybert Dec.). Thus, necessarily, the dissolution cannot be finalized until after the sale. Also it is apparent that dissolution will not preclude 16 th Street or HPV from continuing to litigate their claims. Corporations Code Thus, there is no need to complete litigation pre-dissolution. (3) The financial insecurity of HPV Finally, lifting the stay is necessary because further delay will jeopardize 16 th Street s ability to collect a judgment against HPV. In support of their position, moving parties rely on a Notice of Trustee s Sale, recorded against property owned by HPV Technologies. (Exhibit 12 of Sybert Dec.). In response, however, Counsel for HPV declares: No Trustee s Sale with regard to HPV s Irvine business location has occurred on or since June 6, In fact, the bank is so concerned that it wrongfully recorded a Notice of Trustee s Sale that it offered to rescind the notice in consideration of HPV agreeing to release the Bank from liability from having recorded it. The Notice of Trustee Sale was mistakenly recorded after the negotiation of a forbearance agreement. HPV has not agreed to release the Bank for the wrongful recordation of the Notice of Trustee s Sale. ( 14 of Moore Dec.). The court is not persuaded that 16 th Street has proffered clear evidence of immediate financial distress of HPV compelling this court to lift the stay Pacific Mobil Home Park v City of Huntington Beach The court GRANTS the unopposed motion by Barry A. Ross of Barry A. Ross, A Professional Corporation to be relieved as counsel of record for Cross-Defendant Corrina Loccisano. Mr. Ross is ordered to submit for the court s signature an amended proposed Order Granting Attorney s Motion To Be Relieved As Counsel Civil correcting Item 6 to: (1) include Loccisano s telephone number; and (2) reflect Loccisano s one, current address. The order relieving counsel will be effective upon filing by Mr. Ross of a proof of service of the signed Order Granting Attorney s Motion To Be Relieved As Counsel Civil on Loccisano and all other parties who have appeared in this matter Kim v. Baltayan The Court is inclined to GRANT Defendants Motion to Compel Plaintiff to Submit to an Agreed Neuropsychological Examination and Defendants Motion to Compel Plaintiff s Deposition, as it appears to the Court that both the deposition of and mental examination of Plaintiff now can and should proceed, subject to reasonable accommodations. However, there are still issues to be addressed as to the intended examination and deposition. The hearing date for these Motions is therefore continued to 8/22/13. In the interim, counsel are ordered meet and confer as to: (1) the dates and times, place, manner, conditions, scope, and nature of the examination to be performed by Dr. Ponton, including any reasonable mitigation measures that may be appropriate; and (2) the dates for the deposition of Plaintiff, including

85 Seidel Enterprises v. Universal Molding Company any reasonable mitigation measures that may be appropriate. It is further ordered that both sides are to file and serve, by 8/15/13, their respective proposed Orders (which must fully comply with Code Civ. Proc (b), including the permissible diagnostic tests and procedures to be performed), along with a brief statement as to the areas of and reasons for any remaining disagreements. In the alternative, if the parties reach agreement, they may submit a joint proposed Order by 8/15/13. If the Court has then approved and entered such Order by 8/21/13, no further appearance on the instant Motions would be necessary. As to sanctions they are DENIED. The Motion filed by attorney Beard Hobbs, to be relieved as counsel of record for Plaintiff Seidel Enterprises dba Steven Seidel Electric, shall be GRANTED, subject to prompt submission of a corrected proposed Order reflecting both the currently pending 9/5/13 discovery motion hearing date and the current trial date Emery v. Kamei Family Partnership s Demurrer to entire FAC as to Robert Emery is sustained WITHOUT LEAVE TO AMEND. The Demurrer as to the 2 nd,3 rd, 4 th 5 th, and 6 th causes of action are SUSTAINED WITHOUT LEAVE TO AMEND. On 4/8/2013 Court sustained Defendant s demurrer to the 2 nd -6 th c/a with leave to amend. Reviewing plaintiff s amended complaint it is obvious that plaintiff simply alleges multiple duplicative causes of action which on their face fail to state facts sufficient to make support the claims alleged by plaintiff.ccp (e),(f). What plaintiff did is add her father and additional defendants but has not corrected the defects contained in the prior complaint. Furthermore, plaintiff filed no Opposition. (1) As to Plaintiff Robert Emery Plaintiff alleges that Mr. Emery moved into the apartment in November 12, 2012, yet also pleads that the family had already moved out in October FAC 7. Then alleges that that Robert Emery moved out of the unit presumably sometime in March FAC 27. This is not comprehensible and not subject to amendment without violating the rule against sham pleadings. (2) The 2 nd, 3 rd and 4 th Causes of Action are duplicative of the 7 th Cause of Action for Negligence First, there is no such cause of action for specific performance of Negligent Maintenance of Premises. This is simply a different way of alleging negligence which is pled in the 7 th cause of action. Further, the court agrees with defendant s that this manner of pleading is what is commonly referred to as improper chain letter pleading since each cause of action incorporates by reference all of the preceding paragraphs rendering it impossible for defendant to evaluate plaintiff s claim. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, Similarly, Plaintiff s 3 rd and 4 th cause of action for nuisance again simply restate negligence as they rely on the same facts and seek the same recovery. They are duplicative of each other and not proper. El Escorial Owner s Ass n v. DLC Plastering, Inc. (2007) 154 Cal.App (3) Plaintiff s 5 th cause of action for IIED fails as a matter of law. The court agrees with defendant s that the facts of this lawsuit involve

86 conduct that may be negligent, but not outrageous. Plaintiff offers no specific facts other than complaining that after remediating and renovating the bathrooms that defendant did not make the repairs to plaintiff s specifications. As a matter of law this is an allegation of negligence not despicable, outrageous or malicious. A general contractor is not liable to a homeowner for IIED due to the failure to finish roof repairs before rain entered the home. Fuentes v. Perez (1977) 66 Cal.App.3d 163 (4) 6 th cause for Breach of Implied Covenant of Good Faith and Fair Dealing The 6 th cause of action for Breach of Implied Covenant of Good Faith and Fair Dealing fails to plead any facts to support bad faith. Further, this claim improperly allows plaintiff to avoid the mandate to either elect a tort or a contract but not both when the same underlying facts can support each remedy. It is clear that in the 7 th cause of action plaintiff has chosen negligence. The Motions to Strike and Discovery s Motion to Strike language in the First Amended Complaint pertaining to punitive or exemplary damages is GRANTED WITHOUT LEAVE TO AMEND. The Discovery Motions Defendant Kamei Family Partnership s Motion to Compel Answers to Form Interrogatories, Special Interrogatories and Request for Production of Documents (Sets 1) is granted pursuant to CCP , et seq and Plaintiff to provide verified answers, without objections, within 20 days of the hearing on this motion. Sanctions in the amount of $630 to be paid within 30 days by plaintiff to defendant s. Further, the court orders that unless proper responses to plaintiff s RFAs are received by defendant before the hearing on , Defendant Kamei Family Partnership s motion to deem its requests for admission Plaintiff Kranessa Emery is GRANTED. See, C.C.P (b). Sanctions in the amount of $330 against Plaintiff Kranessa are to be paid to Defendant s within 30 days. C.C.P (c) Hill v. Experian Information Solutions, Inc Defendant Experian Information Solutions Motion to Bifurcate Trial is GRANTED. As punitive damages are claimed by plaintiff bifurcation is mandatory as to any evidence of defendant's profits or financial condition. (Civ. Code 3295(d).) Under these circumstances, in the courts view bifurcating the trial into liability and damages phases promotes judicial economy since bifurcation as to defendant s financial condition is compelled in any event. Moreover, if liability is not found, valuable resources addressing plaintiffs damages are avoided as well as the danger of prejudice to defendant if liability and damages are not bifurcated, as a jury could otherwise be swayed by sympathy, which is not in the interests of justice. As to plaintiff s medical conditions prejudiced by bifurcation the court points out that since he has asserted a claim for punitive damages, the case will have to be bifurcated as to any amount of punitive damages anyway. Therefore, if he prevails on all of his claims at the liability phase, the bifurcation of

87 all damages claims should not present any additional burden on Plaintiff Craft v. City of Orange The Motion to Augment Motion to Augment Administrative Record pursuant to CCP (e) is DENIED Petitioner has filed his writ of mandamus requesting relief under CCP and Under CCP The present motion is only directed to CCP et seq. Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision. (CCP (e) Here, Petitioner requests an order augmenting the administrative record to include: (a) November 2, 2012 letter from Mark Burstein (b) November 7, 2012 letter from Howard A. Liberman (c) November 19, 2012 letter from Wayne Winthers (d) January 13, 2013 letter from Mark Burstein While it is undisputed that the documents were not submitted as part of the parties case but are products created after the decision was announced are they relevant evidence within the meaning of subsection (e) the answer is no. The fact that a panel member changed his mind and was thereafter precluded from re-opening may support elements for CCP 1085 but it is not relevant evidence to be added to the administrative record of the hearing. It defies logic and legislative intent to sanction that after the hearing was concluded and a decision was announced that the re-consideration of a panel member and the memorialization of same has any relationship whether a panel member or this court received sufficient evidence from the parties in the hearing enabling either to decide whether the Chief of Police did or did not have good cause to deny the CCW Curran v. Cardiac Output Technologies Inc Gonzalez v. Block Tops, Inc. Assuming Plaintiff can offer to the court a proof of service the Motion for Leave to File FAC is GRANTED. Otherwise it is continued to 8-29 for service to be made on all defendants. Such service to be made no later than 8-2 Defendants Demurrer to the Complaint is OVERRULED, as to all causes of action. Plaintiff s Request for Judicial Notice is GRANTED. Defendant shall file an Answer to the Complaint, within 15 days. The gist of Defendants demurrer is that in the First through Fourth Causes of Action Plaintiff has not alleged any facts demonstrating his employment was terminated because of his alleged disability, age, or request to take medical leave; rather, Plaintiff merely alleges conclusions. The court finds that plaintiff has pled as explained below sufficient factual allegations to survive demurrer. First, as to the claims for disability discrimination and retaliation, Plaintiff alleges he was terminated by Defendant on the day he returned from medical leave. ( 12 of Complaint). Additionally, Plaintiff alleges, on that same day, his Supervisor threw his doctor s note away, stating this is a piece of shit. ( 12 of Complaint).

88 Based on the above, Plaintiff alleges direct animus, with respect to the statement of his Supervisor. Additionally, pursuant to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th 243, [p]retext may be inferred from the timing of the company s termination decision Id. at 271. Thus, there are factual allegations which demonstrate discriminatory motive and a causal link with Plaintiff s termination. Specifically, the factual allegations support a finding that Defendant had discriminatory animus, based on Plaintiff s medical condition and/or the fact he took medical leave. Second, with respect to the claim for age discrimination, the Complaint alleges that: (1) Plaintiff faced derogatory comments regarding his age; (2) Defendant engaged in differential treatment of younger employees; (3) Defendant replaced Plaintiff with a younger employee; and (4) Defendant chose to retain younger less experienced workers. ( 43 of Complaint). These are sufficient facts to demonstrate a causal connection, between his termination and the alleged discrimination. Begnal v. Canfield & Associates (2000) 78 CA4th 66, 74. Third, as to plaintiffs claim of wrongful termination plaintiff alleges sufficient facts to support this claim, within of the Complaint. Additionally, as employment discrimination based on age, disability or medical condition is illegal, this claim is adequately stated. Government Code Further, these factual allegations are sufficient circumstances to suggest the requisite discriminatory motive. Finally, Pursuant to Khoury v. Maly s of California, Inc. (1993) 14 Cal.App.4 th 612, [a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Id. at 616. While it appears that the Complaint includes some apparently misplaced references, they do not render the claims unduly vague. Further, for purposes of demurrer plaintiff has identified a disability his cataracts: Government Code (b) states [t]he law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. Defendant s Motion to Strike is GRANTED without leave as to Plaintiff s request for penalties under Labor Code 558. It is DENIED as to punitive damages and the other basis asserted by Defendant s. Remedies under Labor Code 558 Labor Code 558 seeks a civil penalty and, thus, the one-year statute of limitations articulated in C.C.P. 340 applies. Here, it is undisputed that Plaintiff s request for penalties under this statute was asserted more than a year after Plaintiff s termination. Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4 th Plaintiff s request for punitive damages In Cloud v. Casey (1999) 76 Cal.App.4 th 895, a finding that a Defendant intentionally discriminated against a Plaintiff, denying them their protected rights under FEHA, is sufficient to support a finding of malice and/or oppression, as such conduct could be determined to be

89 base, contemptible or vile. Id. at 912. Here, plaintiff alleges sufficient facts to state claims for wrongful termination and discrimination, Plaintiff thus alleges sufficient facts to demonstrate malice or oppression.

90 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. August 8, 2013 # Case Name Tentative McLauglin v. McLaughlin Although the trial herein has been continued once by stipulation, there being no opposition and no apparent prejudice the court finds good cause and GRANTS the motion the trial is continued to April 7 th 2014 and all discovery and motion deadlines are based on the new trial date. If counsel desire a mutually convenient date subsequent to this date they may submit by stipulation a request at the time of this hearing identifying that date in which case this ruling will be modified to set that date as the new trial date. Defendant to give Notice Benowitz v Highwinds Capital, Inc. The motion brought by Plaintiff/Cross-Defendant Ari Benowitz to compel compliance with the 12/4/12 ruling is CONTINUED to at 1:30 as there are additional areas that should be the subject of further meet and confer efforts. Specifically, Defendants must disclose the search terms used, and counsel must then meet and confer as to any reasonable followup searches (i.e. what additional terms are to be searched in the vendor database; what additional custodians files should be searched, for what, and why) that may be necessary to complete the process ordered by this Court last December. If, after such meet and confer efforts are complete, there are remaining issues, the parties shall present a joint statement identifying their respective positions as to the particular RFP s at issue and the issues that remain at least 6 court days before the continued hearing date. The Court does not find that its Order was violated by Defendants use of search terms or its targeting of custodians, as that was clearly contemplated in the meet and confer process that was a basis for the prior Order. Nor does the Court find that production by custodian is inconsistent with either C.C.P (a) or the Court s Order, as it did not require that Defendants production be made by request. In addition, if these additional meet and confer efforts do not resolve the disputes between the parties, but instead generate a multitude of new

91 disputes which may make resolution inordinately time consuming, the Court will consider appointment of a discovery referee to address those issues. Accordingly, the parties are also ordered to meet and confer as to a potential stipulation for appointment of a discovery referee, and to include their respective positions relating thereto in the joint statement to be submitted before the continued hearing date. The respective requests for sanctions are, at this time, DENIED. The Court will reserve further consideration of the requests for sanctions for the time of the continued hearing. The Evidentiary Objections to the Declaration of Mr. Fisher are OVERRULED T.D. Service Company v. Kaczmarek WELLS FARGO S DEMURRER The court SUSTAINS Cross-Defendant Wells Fargo, N.A. s demurrer to Defendant/Cross-Complainant John Kaczmarek s Second Amended Cross- Complaint, with final leave to amend for the limited purpose of curing the defects discussed herein.kaczmarek is to file and serve any such amended cross-complaint within 30 days after service of notice of this order. Wells Fargo is to serve notice of this order. Request for Judicial Notice. The court grants Wells Fargo s request for judicial notice of the existence and recordation of its Exhibits 1-7 and 9, as well as the clear legal effects thereof, pursuant to Evid. Code, 452, subds. (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, ) The court grants Wells Fargo s request for judicial notice as to the existence and clear legal effects of its Exhibits 8 and 10-11, pursuant to Evid. Code, 452, subd. (d). 1. Fourth Cause of Action for Breach of Contract Promissory Estoppel This cause of action is confusing in that it blends a contract issue with the theory of promissory estoppel which is distinct. The court will address each. First, Kaczmarek again fails to address any breach of contract theory in his opposition papers. Accordingly, Kaczmarek appears to waive any such theory of liability. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) Second, As to promissory estoppel, the SACC adequately pleads all of the essential elements of promissory estoppel other than detriment suffered in reliance on the alleged promise. Kaczmarek alleges that Wells Fargo, through a clear and unambiguous promise[,] told Kaczmarek it would process the Wells Note modification under HAMP and that Wells would not foreclose during the modification review process. (SACC, 61.) Kaczmarek relied upon that promise by submitting documents requested and required by Wells, and by delaying other actions to save his property from foreclosure. (SACC, 65, 67.) Because Wells Fargo foreclosed before completing the HAMP modification review, Kaczmarek was damaged measured by the loss of his equity in the property, expenses associated with the foreclosure, and a loss of credit rating and a diminished ability to purchase a home in the future. (SACC, 64, 67.) Missing, however, is any allegation of actual detrimental reliance, i.e. that Kaczmarek could have taken any other action to save his property from foreclosure. For example, there is no allegation that he would have been able to refinance one or both loans, or bring current his past due balance, or sell the property. In his opposition, Kaczmarek asserts that he could have filed for Chapter 13 bankruptcy, which might support such a claim. (See Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 227, 228.) However, the SACC is devoid of any such allegation.

92 2. Fifth Cause of Action. Wells Fargo correctly argues that Kaczmarek did not have leave of the court to add this cause of action to the SACC. The court notes that the new fraud claim is not responsive to the defects sustained by the court in the prior demurrer. Notwithstanding plaintiffs failure to get court approval on its face the sufficiency of the allegations are subject to demurrer because it alleges nothing more than a failure to perform on an oral promise barred by the statute of frauds. Moreover, Kaczmarek fails to address this issue in his opposition, effectively conceding its merit. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) WELLS FARGO S MOTION TO STRIKE The court DENIES Wells Fargo s motion to strike portions of Kaczmarek s SACC on the grounds that the motion is moot in light of the order sustaining Wells Fargo s demurrer. Wells Fargo is to serve notice of this order. CITIMORTGAGE S DEMURRER The court OVERRULES Defendant/Cross-Defendant CitiMortgage, Inc. s demurrer to Defendant/Cross-Complainant 1 st and 2 nd Causes of Action. As to the 3 rd Cause of Action it is SUSTAINED AND IT IS FURTHER ORDERD THAT IT MAY NOT BE AMENDED UNTIL PLAINTIFF CROSS COMPLAINTANT FILES THE PROPER MOTION TO AMEND. Accordingly, Cross-Complainant may either choose to proceed with the 1 st and 2 nd causes of action in his amended - Cross-Complaint by reason of the Wells Fargo Demurrer in which case defendant is to answer within 30 days or Prior to filing its amended Cross-Complaint he must seek approval of court to include as new causes of action negligence and declaratory relief thereby allowing defendant CityMortgage opportunity to respond to the request to amend. Request for Judicial Notice. The court GRANTS CitiMortgage s request for judicial notice of the existence of its Exhibits A-E, their recordation, and the clear legal effects thereof, pursuant to Evid. Code, 452, subds. (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, ) Before discussing the specific causes of action the issue of tender raised by defendants must be dealt with. Kaczmarek s claims are not based on any alleged irregularity in the sale procedure and he does not seek to cancel the trustee s sale. He instead seeks damages in connection with alleged fraud leading up to the trustee s sale, and a declaration of the parties respective rights to the proceeds from the trustee s sale. Therefore, the tender rule does not apply. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109; Karlsen v. American Savings & Loan Association (1971) 15 Cal.App.3d 112, 117.) First and Second Causes of Action. Kaczmarek alleges that CitiMortgage represented to him, both in writing and orally, that: the deed of trust held by CitiMortgage was a First Deed of Trust; refinancing the note secured by that deed of trust would not change the deed s priority; that the new deed of trust would remain a purchase money first deed of trust; and that note held by CitiMortgage had to be modified under HAMP as a first deed of trust. (SACC, 12, 21, 39.) Those

93 representations were allegedly false and known by CitiMortgage to be false. (SAC, 40.) They were nevertheless made by CitiMortgage with the intent of inducing Kaczmarek to negotiate with CitiMortgage for a modification as though CitiMortgage held a first deed of trust instead of Wells Fargo, and Kaczmarek reasonably relied on the representations in so negotiating. (SAC, ) The court notes that defendant correctly points out that Kaczmarek failed to allege the name of the CitiMortgage representative and his/her authority to speak. However, at the pleading stage a complaint need not do so where a defendant is in a better position to know the facts concerning the alleged fraud. (Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 158.) Such appears to be the case here. As to damages, Kaczmarek now alleges that Wells Fargo s foreclosure of the subject property, and the resulting trustee s sale, would have been avoided had Kaczmarek known that Wells Fargo actually held the first deed of trust. (SACC, ) Kaczmarek seeks money damages for the loss of his equity in the property, expenses associated with the foreclosure, and a loss of his credit rating and a diminished ability to purchase a home in the future. (SACC, 47.) While it is far from clear whether Kaczmarek will ultimately prevail on either of these claims, the claims appears to have been adequately pled for the purpose of surviving demurrer. Third Cause of Action. As with the Fifth Cause of Action discussed above in connection with Wells Fargo s demurrer, Kaczmarek did not have leave of the court to add this new cause of action to the SACC. Cross-Complainant may not blithely ignore this courts prior ruling irrespective of the merits of this new cause of action. Cross-Complainant if it wants to assert this negligence claim must first obtain leave of court to include this claim for negligence when it files its amended Cross-Complaint in response to the Well Fargo Demurrer. Declaratory Relief As with the Third Cause of Action for negligence, Kaczmarek did not have leave of the court to add this new cause of action to the SACC. CITIMORTGAGE S MOTION TO STRIKE The court GRANTS without leave to amend CitiMortgage s motion to strike the following portions of Kaczmarek s SACC: 48 and Prayer, 2-3. CitiMortgage s motion to strike is otherwise denied. Kaczmarek is to serve notice of this order. Kaczmarek does not oppose the motion to strike as to these items, or otherwise address these issues at all. Therefore, the court treats them as conceded by Kaczmarek for the purpose of this motion. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) Such a concession also appears appropriate. Kaczmarek failed to adequately plead any basis for an award of punitive damages against CitiMortgage as required by Civ. Code, 3294, subd. (b). Kaczmarek also failed to allege any contractual or statutory basis for an award of attorney s fees. Further, leave to amend is denied, and the court anticipates that Kaczmarek will not include allegations seeking punitive damages or attorney s fees against CitiMortgage in any amended cross-complaint filed in response to the order on Wells Fargo s demurrer. This order is without prejudice to Kaczmarek s right to seek such leave to amend at a future date, should investigation and/or discovery disclose a basis for seeking punitive damages and/or attorney s fees against

94 CitiMortgage Morales v. City of Newport Beach Defendant Newport-Mesa Unified School District s demurrer is sustained with 20 days leave to amend. RJN is denied and Court did not consider exhibits attached to Plaintiff s opposition. Plaintiff s 2 nd cause of action for Dangerous Condition As currently pled, plaintiff fails to state sufficient facts to surmount defendant s apparent immunity from liability pursuant to Ca Govt Code and Ca Educ. Code For example, Plaintiff does not adequately plead the crosswalk was a concealed trap sufficient to avoid the immunity provided in In addition the cases to which plaintiff relies on require active knowledge or encouragement to use the property where the dangerous condition is alleged. Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 301 [open gate at a public school can be a dangerous condition]; and Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4 th 139, 149 [bus stop constituted dangerous condition] to support her position that the school District can be liable for failing to exercise reasonable care (even when she was not on school property). Here plaintiff offers no facts to support that the school actively encouraged the use of this particular crosswalk. Indeed, the FAC alleges at 21 that there were several other crosswalks at other areas of the school campus that were of safer design wherein the students should have been directed, meaning, this was not the only crosswalk available. Further, plaintiff fails to show any facts suggesting that the design of the crosswalk acted to encourage the use of this more dangerous crosswalk as opposed to the adjoining ones. At this point plaintiff has pled conclusions or facts such as page 8 of the opposition that the school never took efforts to move the anchor which were not considered Ibrahim v. Bustos The Motion to Consolidate is granted, pursuant to C.C.P. 1048(a) as the subject cases involve common questions of law and fact. The court orders the following cases consolidated : 1. Eva Mena v. Suhair Ibrahim, et al., Case No ; and 2. Ibrahim v. Bustos, Case No Additionally, Ibrahim v. Bustos, Case No , shall be designated the lead case, given that Ibrahim is seeking damages in excess of $25,000. Moving party to give notice. Additionally, moving party shall file the instant order, within both of the above stated actions, in compliance with CRC 3.350(c) Williams v. Orange County Transportation Authority Motion to have Plaintiff Deemed a Vexatious Litigant is GRANTED. The court determines that Plaintiff is a vexatious litigant as that term is defined in

95 Section 391 of the Code of Civil Procedure. Pursuant to Section of the Code of Civil Procedure, the court enters a pre-filing order prohibiting Plaintiff from filing any new proceeding in any court of this state in propria persona without first obtaining leave of the presiding judge Maze v. Stagliano Pursuant to Cal. Rules of Court, rule , subd. (c), the court deems Plaintiff Monica Maze s motion to file an amendment to her Complaint to be a motion to file an amended complaint and GRANTS the motion. Within 10 days after the date of this order, Plaintiff is to file an amended complaint incorporating the following amendment: The name of the plaintiff Monica Maze is amended and changed to Monica Eva Maze, trustee of the Monica Eva Maze Trust created March 5, Plaintiff shall serve notice of this order Health Essist Holdings, Inc. v. Neuckranz Prada v. City of Costa Mesa Malek v. Wells Fargo Bank, N.A. Motion for Change of Venue is DENIED. First, Defendant resides in Arizona, Plaintiff Pursuant to C.C.P. 395(a) is free to bring this action within any county in California. Second, while a court may change the place of trial [w]hen the convenience of witnesses and the ends of justice would be promoted by the change. if the witnesses are parties requires a showing unusual circumstances to change venue. C.C.P. 397(c); Stanning v. White (1958) 156 Cal.App.2d 547. Here, while Defendant s motion briefly references a disability, the motion makes clear that Defendant is [a]voiding the financial debt of hotels [and] rental cars, each time a court appearance is scheduled. (Motion: 4:16-17). Further, Defendant provides no evidence, demonstrating that witnesses residing in Arizona will be required for trial or will be inconvenienced. At the time of this ruling neither party has submitted a brief in support of or opposing the Court s sua sponte motion. Court s Motion to Reclassify case to limited is granted. Clerk to give notice. Demurrer to Second Amended Complaint is SUSTAINED, without leave to amend, as to the First, Second, Third, Fifth and Sixth Causes of Action. As to the Fourth Cause of Action it is SUSTAINED with 15 days leave to amend. Defendant's Request for Judicial Notice is GRANTED. the First, Second and Third Causes of Action Simply put there are no allegations to demonstrate the falsity of the alleged misrepresentations or damages resulting therefrom; rather, the SAC concedes that: (1) Plaintiff's Application was reinstated to Loss Mitigation; (2) the foreclosure was postponed until June 8, 2010; and (3) Defendant contacted Cal-Western to prevent foreclosure. ( and 32 of SAC). Further, while Plaintiff alleges Defendant falsely represented that the sale would be rescinded. ( 34 of SAC), Plaintiff does not allege any reliance on

96 this statement or resulting damage; rather, Plaintiff's only allegations of reliance, indicate that Plaintiff: (1) continued making modified loan payments prior to the sale ( 29 of SAC); and (2) failed to take additional steps "to secure her Property." ( 41). As both of these acts of reliance necessarily refer to the time period prior to the sale, they are insufficient to demonstrate reliance on statements made after foreclosure. The Fourth Cause of Action Here, plaintiff fails to specify which portions of the contract where oral and which portions were written. Additionally, Plaintiff does not attach the written portion, to clarify this ambiguity. Based on the above, Plaintiff failed to plead her contract with specificity. Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4 th 1, 6. Plaintiff is granted final leave to amend, to clarify this claim. The Fifth Cause of Action Plaintiff s Fifth Cause of Action asserts Defendant violated Civil Code 2924, by failing to appropriately post a Notice of Default and Notice of Sale. ( 71 of SAC). Here, fatal to plaintiff s claim are any facts pleading damages with reasonable particularity, as required by Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612. Moreover, given this failure, Plaintiff has not demonstrated standing to sue under the UCL. Rather, as the SAC concedes that Plaintiff was, at all times, aware of the potential foreclosure sale and in contact with Defendant, up to the sale, ( 13, 25 and of the SAC) the SAC fails to demonstrate that Plaintiff suffered injury "as a result of the unfair competition." Aleksick v. 7- Eleven, Inc. (2012) 205 Cal.App.4th 1176, The Sixth Cause of Action A financial institution generally owes no duty to a borrower and, as Plaintiff failed to allege conduct that goes beyond the conventional role as a mere lender of money, this claim fails as a matter of law. Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, Le v. Watkins Motion to be Relieved as Counsel of Record is denied for the following defects: Documents were mailed and faxed despite Court order for documents to be by personal service. The POS fails to list Dieu-Hoa Le and Tien Le as having been served w/ the documents herein POS fails to list the proposed order as having been served (and the Notice of from 7/25/13) Counsel failed to submit a declaration on the required judicial council form MC-052. CRC, Rule (c).

97 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. August 15, 2013 # Case Name Tentative Persiani v. Jordan Motion to Confirm Arbitration Award is GRANTED. The arbitration award shall be confirmed and judgment entered in accordance therewith. Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. C.C.P Additionally, the Court shall confirm an award, unless it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings. C.C.P Further, C.C.P (a) provides that a Court shall vacate an award, if the Court determines any of the following, relevant, items: (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. Absent proof of one of the grounds for vacating an arbitration award listed in C.C.P , a court may not vacate an award, even if the arbitrator commits legal or factual errors which appear on the face of the award and which cause substantial injustice. Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4 th 716, 722. Moreover, "[t]he burden is on the party complaining to

98 affirmatively show error was committed by the arbitrators and an award will not be vacated for any error that does not prejudice his rights. Turner v. Cox (1961) 196 Cal.App.2d 596, 603. As is explained below plaintiff has failed to offer any evidence that fits within these specific round holes. Instead all plaintiff has offered is collateral issues which are not relevant to this specific statutory procedure to confirm or vacate. The Award is not Preempted by Family Law First, Plaintiff asserts the Arbitrator exceeded his power (pursuant to C.C.P (a)(4)), as the Arbitrator ruled on issues within the exclusive jurisdiction of the family law court. Plaintiff cites to Askew v. Askew (1994) 22 Cal.App.4 th 942, which affirms family law jurisdiction as a general matter. Here, while plaintiff asserts family law jurisdiction she offers no evidence which would void this award. For example, plaintiff fails to provide an order that her prior dissolution action is active or has been re-opened to address community issues. Nor does plaintiff show how this award was premised on a finding of the community or separate character of the royalties of the disputed contract. This is evident from the following explanation of the Arbitrator: The original claims filed by Ms. Persiani, that was ordered to arbitration by the superior court, alleged four causes of action: Breach of Contract, Fraud/False Promise, Fraud/Concealment, and Deceit. Ms. Persiani was seeking her share of royalties based on her community property rights derived from her marriage to Paul Persiani, one of the principals in the disposable glove company. (Attachment 8c of Petition). Plainly, the Arbitrator started with the community property character already determined by the Family court. The fact that the Arbitrator found that Claimant has no interest in patent numbers : and suggest some property uncertainty plaintiff offers no argument or evidence presented that the Arbitrator premised this patent conclusion on whether they were separate or community property. Plaintiff has shown no evidence to show this connection. Rather, she offers unsupported speculation and unsupported argument. For example the court notes the following to which it takes judicial notice for purposes of its decision to confirm: 1. Plaintiff opted to file this action in civil court in 2009 (See Complaint); and 2. Plaintiff entered into a Stipulation with Defendants, in 2009, within the family law action, which states: Upon the agreement between the parties that Respondent would be entitled to fifty percent (50%) of any royalties due and owing under the Royalty Agreement, if any, there are no remaining 'family law' issues left to be adjudicated by the family law court and the Family Law Action is hereby fully resolved and adjudicated. (Exhibit 1 of Reply). Even if the court were to give credence to plaintiff s characterization claim which it does not. The Arbitrators award resolved the primary issue the moneys if any due to plaintiff under the Royalty Agreement.

99 Based on all of the above, Plaintiff failed to meet her burden, of demonstrating an excess of jurisdiction. Bankruptcy stay is not a basis to vacate the Award. Plaintiff relies on 11 U.S.C. 362(a), which provides that a bankruptcy filing automatically stays the commencement or continuation [of an] action or proceeding against the debtor to oppose confirmation by claiming that the Arbitrator exceeded his power (pursuant to C.C.P (a)(4)), as the Arbitrator ruled on critical issues, during a bankruptcy stay. As is pointed out below he did not. It is undisputed that Defendant Paul Persiani filed for bankruptcy during the arbitration. Additionally, it is undisputed that during the application of this stay, the Arbitrator made two orders: (1) continuing arbitration pending removal of the bankruptcy stay; and (2) granting relief to Plaintiff s Counsel. The court agrees that neither of these orders constitute the continuation [of an] action or proceeding against the debtor. Indeed, the first order indisputably sought to continue arbitration, in order to comply with the bankruptcy stay. Further, the second order affected only plaintiff (an individual to which no stay applied). Moreover, pursuant to 11 U.S.C. 362(a), as the automatic stay operates only to stay proceedings against the bankruptcy debtor, the Arbitrator could have proceeded with arbitration, with respect to the remaining Defendants (although he opted not to for the sake of efficiency). These orders contrary to plaintiff s claim only affect the (1)general timing of arbitration and (2) relieving Plaintiff s Counsel. They are not substantive and not specific to the debtor. These orders were proper and not impacted by the bankruptcy stay and even if they had impact plaintiff fails to show how either of these orders prejudiced her rights. Turner v. Cox (1961) 196 Cal.App.2d 596, 603. Denial after 83 days to request to continue arbitration to find counsel Lastly, plaintiff argues vacating the award because the Arbitrator engaged in misconduct and inappropriately denied her a continuance (pursuant to C.C.P (a)(3) and (4)), when he provided only 83 days for Plaintiff to obtain new Counsel. This argument has no merit. First, 83 days appears more than sufficient to secure counsel. Second, plaintiff s Counsel could have sought a continuance of the arbitration, if additional time was needed to prepare for the hearing. There is no indication that any attorney sought such a continuance. Third, there is no indication that plaintiff sought any continuance of arbitration, after the order relieving counsel. Absent a request for additional time, this Court cannot find the Arbitrator acted inappropriately by failing to grant a continuance. Indeed, there is no evidence that the Arbitrator failed to grant a continuance after sufficient cause being shown. C.C.P (a)(5). Finally, and most damaging to plaintiff s claimed prejudice that she was deprived of an opportunity to present evidence is contained in this part of the Arbitrator s order: Ms. Persiani was unable to proceed on her claims due to her failure to pay her fees to underwrite the arbitration hearing. (Attachment 8(c): 3:16-17). It is disingenuous at best to now argue that she wasn t given

100 enough time when in fact she admitted that it was not the lack of time that caused her lack of preparation but that she had no funds for the hearing. The Arbitrator s further denial to continue after 83 days was proper. Improper Re-consideration of Grant of Arbitration. A non-signatory Plaintiff can be equitably estopped from avoiding arbitration. As the Court in JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4 th 1222 explained: When a plaintiff brings a claim which relies on contract terms against a defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement. [citation removed] There is no reason why this doctrine should not be equally applicable to a non-signatory plaintiff. When that plaintiff is suing on a contract on the basis that, even though the plaintiff was not a party to the contract, the plaintiff is nonetheless entitled to recover for its breach, the plaintiff should be equitably estopped from repudiating the contract s arbitration clause. Here, plaintiff s action sought to enforce an alleged breach of the Royalty Agreement, despite the fact that Plaintiff was not a signatory of that agreement. Consequently, plaintiff may not now seek to repudiate that clause because the Arbitrator found against her. Nor may plaintiff now claim that the court should vacate the award because she did not give consent ie again seeking to relitigate the order to compel arbitration. It is untimely and an improper motion to reconsider. Based on all of the above, Plaintiff failed to demonstrate any justification for vacating the arbitration award and, as a result, the award is confirmed Serrano v. Orellana Inhale v. Worldwide Smoke Inc. The court GRANTS Plaintiff Francisco Serrano s unopposed motion to set aside the dismissal entered by the court on 12/18/12, pursuant to Code Civ. Proc., 473, subd. (b). Such relief is appropriate and mandatory under Section 473(b). The 12/18/12 dismissal is hereby set aside. Plaintiff shall, within 5 days, file an executed version of the Request for Court Judgment attached as Exhibit 1 to Plaintiff s motion. The court sets this matter for an OSC re Dismissal on November 19 th at 9:30 A.M in Department C-6. No appearance shall be necessary if judgment has been entered prior to that date. Plaintiff shall serve notice of this order. Defendant s Motion to Compel Further Responses to Requests for Production of Documents is GRANTED in its entirety. Sanctions against Plaintiff Inhale in the amount of $ 1000 are payable to defendant s counsel within 30 days of this order. Plaintiff inhale s motion to compel production of documents is DENIED. Sanctions are Denied

101 Motion to Compel Further Responses to Requests for Production of Documents For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery. See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, Here, Plaintiff objected to the requests at issue based on relevancy grounds, but in each instance, the requests are clearly relevant to the case as they will assist Defendant Starbuzz in evaluating the case, preparing for trial, or facilitating settlement. Responses to be provided without objection within 20 days of this order. Motion to Compel Production of Documents Plaintiff Inhale s is denied as untimely. Defendant objected to the production of its sales records in response to the 1 st Set of Request for Production of Documents by Plaintiff, Nos , 42. Although Plaintiff filed a Motion to Compel Further Responses, that motion did not include 38-40, 42 and therefore, since this motion was not brought w/in 45 days of the original objection, it is waived to compel a further response of the identical request. CCP (c) Mercury Casualty Company v. Chu Rodriguez v. Integrity Metal, Inc. As the Judgment which is the subject of this motion was not signed by this court this motion is continued and transferred to Judge Claster who signed the subject Judgment for hearing on August 23 at 10:00 A.M in Department C-25 The court DENIES Defendant Integrity Metal, Inc. s motion to compel Plaintiff Lino Rodriguez to appear for a medical examination. The instant motion was moot when filed. Defendant filed the instant motion on 07/29/13. It is undisputed that Plaintiff appeared for the desired medical examination on 07/25/13, four days prior. (Madoni Dec., ) To the extent that the purpose of bringing this motion was to obtain as monetary sanctions the cancellation costs charged by the examining experts (see McCarthy Dec., 17 and 18(c)-(d)), such fees cannot be awarded as monetary sanctions. (See Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 262 [monetary sanctions for compelling discovery participation may include only the costs of bringing the motion, including attorneys' fees].) The court therefore finds that Defendant brought the motion without substantial justification. Monetary sanctions are therefore awarded against Defendant in the amount of $900.00, pursuant to Code Civ. Proc., , subd. (b). Such sanctions are to be paid to Plaintiff within 30 days after service of notice of this order.

102 Plaintiff is to serve notice of this order Tachdijian v. John Hancock Life & Health Insurance Company The Court is inclined to GRANT the unopposed Motion filed by Defendants/Cross-Complainants John Hancock Life & Health Ins. Co. & John Hancock Life Ins. Co. U.S.A. (collectively John Hancock ), upon submission of a stipulation signed by counsel for John Hancock and counsel for Plaintiff reflecting the alleged agreement with Plaintiff as to moving parties claim for $5,000 in attorney s fees and costs. The unopposed Request for Judicial Notice is GRANTED pursuant to Evid. Code 452(d) and Collins v. Lumenis Motion Requesting In Camera Review of Notes by Discovery Referee is DENIED. Plaintiff has failed to demonstrate that any harm will result, separate from the claimed attorney-client privilege, which this Court has already found does not apply Kelly v. Daniel T. Stein, M.D. Inc Defendants Demurrer as to the 3rd, 5th, 6th and 7th causes of action in the SAC is OVERRULED. The demurrers as to the claims for Conversion, Negligence, and Intentional Interference with Prospective Economic Advantage are overruled for the same reasons already stated in the Minute Order of 5/2/13. Defendants new limitations claim as to the Conversion cause of action is overruled because, when an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. (Hogar Dulce Hogar v. Community Development Com'n of City of Escondido (2003) 110 Cal.App.4th 1288, 1295.) But as Plaintiff has alleged multiple events of conversion into 2013, at least some of the alleged conduct occurred within the 3-year limitations period, so the claim is not time-barred. Defendants laches claims fail because laches is not a defense in an action at law. (5 Witkin, Cal. Proc. 5th (2008) Plead, 1125, p. 552.) It is also beyond the scope of a demurrer in any event where the defense is not demonstrated from the face of the pleading. (5 Witkin, Cal. Proc. 5th (2008) Plead, 963, p As to the Conspiracy claim SAC alleges that Defendants conspired to misappropriate Plaintiffs funds and to divert patients seeking out Plaintiff s services after the OESA s terminated: as the OESAs do not support Defendants claim that Section 14 survived termination, these claims thus go beyond allegations of a conspiracy to breach a contract. Nor would the agent immunity rule preclude claims of conspiracy as between the individual defendants. Plaintiffs also allege that Defendants took specific actions in furtherance of their common design, (see SAC 39 47, & ) which would give rise to an independent cause of action for conversion, defamation, and IIPEA all of which are

103 sufficiently pled to survive demurrer. Defendants Motion to Strike portions of Plaintiffs First Amended Complaint is DENIED. Plaintiffs have alleged sufficient facts to support, for purposes of a Motion to Strike, their claims for punitive damages on the Third, Sixth, Seventh and Eighth causes of action. Defendants have not established any defect in Plaintiffs prayers for interest, and have failed to provide any support for their request to strike the attorney s fee requests Smith v. Ayaz Plaintiff s Motion for Trial Preference is GRANTED. However, the Motion for severance or bifurcation is DENIED without prejudice. Actions for declaratory relief are set for trial at the earliest possible date and take precedence over all other cases, except older matters of the same character and matters to which special precedence may be given by law. [C.C.P (a); 7 Witkin, Cal. Proc. 5th (2008) Trial, 67, p. 93]. As Defendant/Cross- Complainant has no opposition to trial preference, there is no justification for bifurcation/severance of the FAXC for the purposes of trial at this time. Moving party to give notice Dowell v. Original Mike s Enterprises Motion to be Relieved is DENIED, without prejudice. Although Counsel has substantially complied with CRC , as Counsel has not produced a Proof of Service, demonstrating timely service on Mr. Lonnie Dotson. However in the alternative if counsel can offer at the hearing proof of valid service on Mr. Lonnie Dotson, the instant motion is GRANTED.

104 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. August 15, 2013 # Case Name Tentative Persiani v. Jordan Motion to Confirm Arbitration Award is GRANTED. The arbitration award shall be confirmed and judgment entered in accordance therewith. Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. C.C.P Additionally, the Court shall confirm an award, unless it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings. C.C.P Further, C.C.P (a) provides that a Court shall vacate an award, if the Court determines any of the following, relevant, items: (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. Absent proof of one of the grounds for vacating an arbitration award listed in C.C.P , a court may not vacate an award, even if the arbitrator commits legal or factual errors which appear on the face of the award and which cause substantial injustice. Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4 th 716, 722. Moreover, "[t]he burden is on the party complaining to

105 affirmatively show error was committed by the arbitrators and an award will not be vacated for any error that does not prejudice his rights. Turner v. Cox (1961) 196 Cal.App.2d 596, 603. As is explained below plaintiff has failed to offer any evidence that fits within these specific round holes. Instead all plaintiff has offered is collateral issues which are not relevant to this specific statutory procedure to confirm or vacate. The Award is not Preempted by Family Law First, Plaintiff asserts the Arbitrator exceeded his power (pursuant to C.C.P (a)(4)), as the Arbitrator ruled on issues within the exclusive jurisdiction of the family law court. Plaintiff cites to Askew v. Askew (1994) 22 Cal.App.4 th 942, which affirms family law jurisdiction as a general matter. Here, while plaintiff asserts family law jurisdiction she offers no evidence which would void this award. For example, plaintiff fails to provide an order that her prior dissolution action is active or has been re-opened to address community issues. Nor does plaintiff show how this award was premised on a finding of the community or separate character of the royalties of the disputed contract. This is evident from the following explanation of the Arbitrator: The original claims filed by Ms. Persiani, that was ordered to arbitration by the superior court, alleged four causes of action: Breach of Contract, Fraud/False Promise, Fraud/Concealment, and Deceit. Ms. Persiani was seeking her share of royalties based on her community property rights derived from her marriage to Paul Persiani, one of the principals in the disposable glove company. (Attachment 8c of Petition). Plainly, the Arbitrator started with the community property character already determined by the Family court. The fact that the Arbitrator found that Claimant has no interest in patent numbers : and suggest some property uncertainty plaintiff offers no argument or evidence presented that the Arbitrator premised this patent conclusion on whether they were separate or community property. Plaintiff has shown no evidence to show this connection. Rather, she offers unsupported speculation and unsupported argument. For example the court notes the following to which it takes judicial notice for purposes of its decision to confirm: 1. Plaintiff opted to file this action in civil court in 2009 (See Complaint); and 2. Plaintiff entered into a Stipulation with Defendants, in 2009, within the family law action, which states: Upon the agreement between the parties that Respondent would be entitled to fifty percent (50%) of any royalties due and owing under the Royalty Agreement, if any, there are no remaining 'family law' issues left to be adjudicated by the family law court and the Family Law Action is hereby fully resolved and adjudicated. (Exhibit 1 of Reply). Even if the court were to give credence to plaintiff s characterization claim which it does not. The Arbitrators award resolved the primary issue the moneys if any due to

106 plaintiff under the Royalty Agreement. Based on all of the above, Plaintiff failed to meet her burden, of demonstrating an excess of jurisdiction. Bankruptcy stay is not a basis to vacate the Award. Plaintiff relies on 11 U.S.C. 362(a), which provides that a bankruptcy filing automatically stays the commencement or continuation [of an] action or proceeding against the debtor to oppose confirmation by claiming that the Arbitrator exceeded his power (pursuant to C.C.P (a)(4)), as the Arbitrator ruled on critical issues, during a bankruptcy stay. As is pointed out below he did not. It is undisputed that Defendant Paul Persiani filed for bankruptcy during the arbitration. Additionally, it is undisputed that during the application of this stay, the Arbitrator made two orders: (1) continuing arbitration pending removal of the bankruptcy stay; and (2) granting relief to Plaintiff s Counsel. The court agrees that neither of these orders constitute the continuation [of an] action or proceeding against the debtor. Indeed, the first order indisputably sought to continue arbitration, in order to comply with the bankruptcy stay. Further, the second order affected only plaintiff (an individual to which no stay applied). Moreover, pursuant to 11 U.S.C. 362(a), as the automatic stay operates only to stay proceedings against the bankruptcy debtor, the Arbitrator could have proceeded with arbitration, with respect to the remaining Defendants (although he opted not to for the sake of efficiency). These orders contrary to plaintiff s claim only affect the (1)general timing of arbitration and (2) relieving Plaintiff s Counsel. They are not substantive and not specific to the debtor. These orders were proper and not impacted by the bankruptcy stay and even if they had impact plaintiff fails to show how either of these orders prejudiced her rights. Turner v. Cox (1961) 196 Cal.App.2d 596, 603. Denial after 83 days to request to continue arbitration to find counsel Lastly, plaintiff argues vacating the award because the Arbitrator engaged in misconduct and inappropriately denied her a continuance (pursuant to C.C.P (a)(3) and (4)), when he provided only 83 days for Plaintiff to obtain new Counsel. This argument has no merit. First, 83 days appears more than sufficient to secure counsel. Second, plaintiff s Counsel could have sought a continuance of the arbitration, if additional time was needed to prepare for the hearing. There is no indication that any attorney sought such a continuance. Third, there is no indication that plaintiff sought any continuance of arbitration, after the order relieving counsel. Absent a request for additional time, this Court cannot find the Arbitrator acted inappropriately by failing to grant a continuance. Indeed, there is no evidence that the Arbitrator failed to grant a continuance after sufficient cause being shown. C.C.P (a)(5). Finally, and most damaging to plaintiff s claimed prejudice that she was deprived of an opportunity to present evidence is contained in this part of the Arbitrator s order: Ms. Persiani was unable to proceed on her claims due to her failure to pay her fees to underwrite the arbitration hearing. (Attachment 8(c): 3:16-17).

107 It is disingenuous at best to now argue that she wasn t given enough time when in fact she admitted that it was not the lack of time that caused her lack of preparation but that she had no funds for the hearing. The Arbitrator s further denial to continue after 83 days was proper. Improper Re-consideration of Grant of Arbitration. A non-signatory Plaintiff can be equitably estopped from avoiding arbitration. As the Court in JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4 th 1222 explained: When a plaintiff brings a claim which relies on contract terms against a defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement. [citation removed] There is no reason why this doctrine should not be equally applicable to a non-signatory plaintiff. When that plaintiff is suing on a contract on the basis that, even though the plaintiff was not a party to the contract, the plaintiff is nonetheless entitled to recover for its breach, the plaintiff should be equitably estopped from repudiating the contract s arbitration clause. Here, plaintiff s action sought to enforce an alleged breach of the Royalty Agreement, despite the fact that Plaintiff was not a signatory of that agreement. Consequently, plaintiff may not now seek to repudiate that clause because the Arbitrator found against her. Nor may plaintiff now claim that the court should vacate the award because she did not give consent ie again seeking to re-litigate the order to compel arbitration. It is untimely and an improper motion to reconsider. Based on all of the above, Plaintiff failed to demonstrate any justification for vacating the arbitration award and, as a result, the award is confirmed Serrano v. Orellana Inhale v. Worldwide Smoke Inc. The court GRANTS Plaintiff Francisco Serrano s unopposed motion to set aside the dismissal entered by the court on 12/18/12, pursuant to Code Civ. Proc., 473, subd. (b). Such relief is appropriate and mandatory under Section 473(b). The 12/18/12 dismissal is hereby set aside. Plaintiff shall, within 5 days, file an executed version of the Request for Court Judgment attached as Exhibit 1 to Plaintiff s motion. The court sets this matter for an OSC re Dismissal on November 19 th at 9:30 A.M in Department C-6. No appearance shall be necessary if judgment has been entered prior to that date. Plaintiff shall serve notice of this order. Defendant s Motion to Compel Further Responses to Requests for Production of Documents is GRANTED in its entirety. Sanctions against Plaintiff Inhale in the amount of $ 1000 are payable to defendant s counsel within 30 days of this order. Plaintiff inhale s motion to compel production of documents is DENIED. Sanctions are Denied

108 Motion to Compel Further Responses to Requests for Production of Documents For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery. See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, Here, Plaintiff objected to the requests at issue based on relevancy grounds, but in each instance, the requests are clearly relevant to the case as they will assist Defendant Starbuzz in evaluating the case, preparing for trial, or facilitating settlement. Responses to be provided without objection within 20 days of this order. Motion to Compel Production of Documents Plaintiff Inhale s is denied as untimely. Defendant objected to the production of its sales records in response to the 1 st Set of Request for Production of Documents by Plaintiff, Nos , 42. Although Plaintiff filed a Motion to Compel Further Responses, that motion did not include 38-40, 42 and therefore, since this motion was not brought w/in 45 days of the original objection, it is waived to compel a further response of the identical request. CCP (c) Rodriguez v. Integrity Metal, Inc. The court DENIES Defendant Integrity Metal, Inc. s motion to compel Plaintiff Lino Rodriguez to appear for a medical examination. The instant motion was moot when filed. Defendant filed the instant motion on 07/29/13. It is undisputed that Plaintiff appeared for the desired medical examination on 07/25/13, four days prior. (Madoni Dec., ) To the extent that the purpose of bringing this motion was to obtain as monetary sanctions the cancellation costs charged by the examining experts (see McCarthy Dec., 17 and 18(c)-(d)), such fees cannot be awarded as monetary sanctions. (See Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 262 [monetary sanctions for compelling discovery participation may include only the costs of bringing the motion, including attorneys' fees].) The court therefore finds that Defendant brought the motion without substantial justification. Monetary sanctions are therefore awarded against Defendant in the amount of $900.00, pursuant to Code Civ. Proc., , subd. (b). Such sanctions are to be paid to Plaintiff within 30 days after service of notice of this order. Plaintiff is to serve notice of this order

109 Tachdijian v. John Hancock Life & Health Insurance Company The Court is inclined to GRANT the unopposed Motion filed by Defendants/Cross-Complainants John Hancock Life & Health Ins. Co. & John Hancock Life Ins. Co. U.S.A. (collectively John Hancock ), upon submission of a stipulation signed by counsel for John Hancock and counsel for Plaintiff reflecting the alleged agreement with Plaintiff as to moving parties claim for $5,000 in attorney s fees and costs. The unopposed Request for Judicial Notice is GRANTED pursuant to Evid. Code 452(d) and Collins v. Lumenis Motion Requesting In Camera Review of Notes by Discovery Referee is DENIED. Plaintiff has failed to demonstrate that any harm will result, separate from the claimed attorney-client privilege, which this Court has already found does not apply Kelly v. Daniel T. Stein, M.D. Inc Defendants Demurrer as to the 3rd, 5th, 6th and 7th causes of action in the SAC is OVERRULED. The demurrers as to the claims for Conversion, Negligence, and Intentional Interference with Prospective Economic Advantage are overruled for the same reasons already stated in the Minute Order of 5/2/13. Defendants new limitations claim as to the Conversion cause of action is overruled because, when an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. (Hogar Dulce Hogar v. Community Development Com'n of City of Escondido (2003) 110 Cal.App.4th 1288, 1295.) But as Plaintiff has alleged multiple events of conversion into 2013, at least some of the alleged conduct occurred within the 3-year limitations period, so the claim is not time-barred. Defendants laches claims fail because laches is not a defense in an action at law. (5 Witkin, Cal. Proc. 5th (2008) Plead, 1125, p. 552.) It is also beyond the scope of a demurrer in any event where the defense is not demonstrated from the face of the pleading. (5 Witkin, Cal. Proc. 5th (2008) Plead, 963, p As to the Conspiracy claim SAC alleges that Defendants conspired to misappropriate Plaintiffs funds and to divert patients seeking out Plaintiff s services after the OESA s terminated: as the OESAs do not support Defendants claim that Section 14 survived termination, these claims thus go beyond allegations of a conspiracy to breach a contract. Nor would the agent immunity rule preclude claims of conspiracy as between the individual defendants. Plaintiffs also allege that Defendants took specific actions in furtherance of their common design, (see SAC 39 47, & ) which would give rise to an independent cause of action for conversion, defamation, and IIPEA all of which are sufficiently pled to survive demurrer. Defendants Motion to Strike portions of Plaintiffs First Amended Complaint is DENIED.

110 Plaintiffs have alleged sufficient facts to support, for purposes of a Motion to Strike, their claims for punitive damages on the Third, Sixth, Seventh and Eighth causes of action. Defendants have not established any defect in Plaintiffs prayers for interest, and have failed to provide any support for their request to strike the attorney s fee requests Smith v. Ayaz Plaintiff s Motion for Trial Preference is GRANTED. However, the Motion for severance or bifurcation is DENIED without prejudice. Actions for declaratory relief are set for trial at the earliest possible date and take precedence over all other cases, except older matters of the same character and matters to which special precedence may be given by law. [C.C.P (a); 7 Witkin, Cal. Proc. 5th (2008) Trial, 67, p. 93]. As Defendant/Cross-Complainant has no opposition to trial preference, there is no justification for bifurcation/severance of the FAXC for the purposes of trial at this time. Moving party to give notice Dowell v. Original Mike s Enterprises Motion to be Relieved is DENIED, without prejudice. Although Counsel has substantially complied with CRC , as Counsel has not produced a Proof of Service, demonstrating timely service on Mr. Lonnie Dotson. However in the alternative if counsel can offer at the hearing proof of valid service on Mr. Lonnie Dotson, the instant motion is GRANTED.

111 s 1 Page 1 of 8 9/5/2013 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. September 5, 2013 # Case Name Tentative Brown v. Osmon The court STAYS the pending motions by Defendant The Bank of New York Mellon for: (1) an award of attorney s fees against Plaintiff Cynthia Loiuse Brown and; (2) an order expunging the lis pendens recorded by Brown on 02/24/09 and awarding additional attorney s fees against Brown and her counsel in connection therewith. This stay is entered in light of Brown s pending bankruptcy proceeding. The stay shall remain in effect until the earlier of the following two events: (1) the filing of a notice in this court that Brown s bankruptcy proceeding has been terminated; and (2) the filing of a notice in this court of an order by the bankruptcy court lifting the automatic stay as to The Bank of New York Mellon s claim for attorney s fees in connection with this lawsuit. Brown is to serve notice of this order U.S. Bank N.A. as Trustees v. Bella Terra Office J.V. LLC O/C

112 s 1 Page 2 of 8 9/5/ Jobe v. Apex Mortgage Services, Inc Boeker v. County of Orange Cont to The court GRANTS Defendant City of Anaheim s motion for an order granting it summary judgment as to Plaintiff Donald Boeker s First Amended Complaint. City of Anaheim is to serve notice of this order, and prepare a proposed judgment consistent with this order. STANDARDS FOR SUMMARY JUDGMENT A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff s action has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. Proc., 437c, subds. (a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Ibid.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) Accordingly, a defendant s motion for summary judgment cannot be granted where it does not negate all theories of liability pled by the plaintiff. (Hawkins v. Wilton, supra, 144 Cal.App.4th at p. 945.) CITY OF ANAHEIM MET ITS BURDEN OF SHOWING THAT PLAINITFF S ACTION HAS NO MERIT DUTY TO PROVIDE PROTECTION Plaintiff s sole cause of action against City of Anaheim is for negligence, based on the allegation that the City: undertook affirmative steps to provide [Plaintiff] with protection [and was therefore] charged with a duty of care to protect [Plaintiff] in exchange for his testimony. [ ] However, upon [Plaintiff s] release, [the City] failed to continue to provide [Plaintiff] with witness protection which led to the physical attack on [Plaintiff]. (FAC, ) As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1499.) Such a duty may arise,

113 s 1 Page 3 of 8 9/5/2013 however, if a special relationship exists between the actor and the other which gives the other a right to protection. (Ibid.) Such a special relationship exists between a police department and a testifying witness only upon proof of a specific or implicit undertaking to provide protection for [the witness] prior to, during, or after trial. (Id. at p ) In order to find a special relationship sufficient to create a duty by police officers to warn a witness, the plaintiff must plead reliance by the plaintiff on the officers conduct and statements made by the officers which induced a false sense of security and thereby worsened the plaintiff s position. (Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923, 931.) The City proffered evidence to establish that the City s agents did not ever tell Plaintiff that Clements was not a potential threat. (UMF 3, 8, 10.) Moreover, Plaintiff was expressly aware of the potential for retaliation by Clements. (UMF 4. This high bar is necessary because, unlike a duty to warn discussed below, imposition of a duty to provide protection requires the commitment of substantially greater resources [and] should be undertaken, if at all, only after careful consideration and in the context of an explicit and well defined commitment to do so. To put it simply a specific commitment by the police officers to protect the testifying witness against the vindictiveness of [the defendant against whom testimony is provided. (Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p ) Here, The City proffered evidence sufficient to establish that Plaintiff spoke about offering evidence against Clements with only two people affiliated with the City: Officer Chad Meyer and Detective Kathleen Reiss. (UMF 2-3, 5-11.) At no time did Plaintiff speak with either Meyer or Reiss about witness protection. (UMF 3, 10, 11.) However it is clear to the court that while Plaintiff spoke to Reiss once about his concern that Clements would retaliate, Reiss said only, [d]on t worry about it, we ll protect you. (Plaintiff Depo, 62:5-21, 64:14-24.) As a matter of law this statement fall short of the Such a statement, on its own, falls far short of the specific commitment required to create a special relationship and it s corresponding duty. (See Hernandez v. City of Pomona, supra, 49 Cal.App.4th at pp [officer s assurance that no harm would come to witness inadequate to establish duty].) It is apparent here from the evidence that absent is any evidence for example, as to when any putative protection would begin, how long it would last, or what resources would be involved. DUTY TO WARN

114 s 1 Page 4 of 8 9/5/2013 Apart from the duty to protect plaintiff s cause of action although not raised directly must be addressed because in considering summary judgment pleadings serve as the outer measure of materiality (See Laabs v. City of Victorville (2008) 163 Cal.App.4th In reviewing the evidence the undisputed material facts establish that it did not owe Plaintiff a duty to warn him and, in any event, did nothing to breach that duty. For example the City proffered evidence sufficient to show it had no specific information prior to the assault indicating that Plaintiff might be subjected to physical harm as a result of his interactions with Clements in jail or potential testimony against Clements. (UMF 13.) PLAINTIFF FAILED TO MEET HIS BUDEN OF SHOWING A TRIABLE ISSUE OF MATERIAL FACT As to the above duties the court finds that plaintiff has failed to proffer evidence sufficient to show a triable issue as to whether the City made any specific or implicit undertaking to provide Plaintiff protection. Although plaintiff offers that Orange County Sheriff s Deputies Lopez and Enriquez expressed concern that Plaintiff could be subject to retaliation, and transferred Plaintiff to a cell block away from Clements. (Plaintiff Depo, 42:4-43:22, 52:6-25.) There is no evidence that Deputies Lopez or Enriquez were agents of the City in doing so, as opposed to agents of the County of Orange, by whom Sherriff s Deputies are employed this is lack of agency is fatal to plaintiff to show that there are triable issues of fact either as part of the duty to protect or the duty to warn. For example, plaintiff submits that a triable issue of fact exist as to the extent of Sutter s role in handling plaintiff s application for witness protection. However, this evidence is insufficient since there are no facts indicating whether Sutter was affiliated with the City (as opposed to the County or the State. Further, there is evidence that plaintiff did not meet with Sutter or submit the witness protection application until after the retaliation by Clements occurred. (Plaintiff Depo, 65:7-22.) Finally, although plaintiff claims in his declaration that Officer Chad Meyer told me not to worry, that [Plaintiff] would be moved to a new cell block, which they did and that Reiss told [Plaintiff] not to worry [about Clements because] they will protect me. (Plaintiff Dec., 2.) His deposition testimony directly contradicts as such conflicting testimony cannot create a triable issue sufficient to avoid summary judgment. (Benavides v. City of San Jose Police Department (1999) 71 Cal.App.4th 853, 861, 864.) Similarly, plaintiff fails to proffer evidence sufficient to show a triable issue as to whether the City

115 s 1 Page 5 of 8 9/5/2013 breached any duty to warn Plaintiff. At most the evidence proffered is that Reiss was aware that Clements had attempted to smuggle a handcuff key into jail in an effort to escape. (Plaintiff Depo, 73:3-13.) But, again no evidence is offered or could be reasonably inferred as too when Reiss learned that information, or any evidence to connect such knowledge with the beating that Plaintiff received from two unidentified men other than Clements. To construe a triable issue to warn on this evidence would create facts supporting a duty to warn where in reality none exist Buffington v Rouse The court GRANTS Defendant Terry Rouse s motion to strike the following portions of Plaintiff David Buffington s Second Amended Complaint, without leave to amend: Page 3, 10(f), EXEMPLARY DAMAGES; Page 3, 14(a)(2); Page 5, IT-1, THE PLAINTIFF IS ENTITLED TO RECOVER FROM THE DEFENDANT PUNITIVE DAMAGES IN AN AMOUNT ACCORDING TO PROOF AT TIME OF TRIAL; and Page 6 ( Exemplary Damages Attachment ). Defendant shall file and serve his answer to the SAC within 10 days after the date of this order. Defendant is to serve notice of this order Chappell v. Nationstar Mortgage LLC Demurrer to Second Amended Complaint is SUSTAINED, in its entirety, without leave to amend. Additionally, Defendant s Request for Judicial Notice is GRANTED. 1 st C/A The First Cause of Action fails, as liability under the UCL cannot be based on successor liability and Plaintiff concedes that this claim arises from the conduct of AURORA. Emery v. Visa International Service Association (2002) 95 Cal.App.4 th 952, 960 and Opposition 10:8-17, which cites of the SAC. 2 nd C/A The Second Cause of Action for Negligence fails, as a Loan Modification attempt is insufficient to establish a duty owed by a lender. Nymark v. Heart Fed. Savings

116 s 1 Page 6 of 8 9/5/2013 & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 and Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4 th 182, rd C/A The Third Cause of Action for Breach of the Implied Covenant fails, as this claim arises from Defendant s alleged denial of a loan modification and [t]he covenant cannot be endowed with an existence independent of its contractual underpinnings It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of the agreement." Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4 th 317, th C/A The Fourth Cause of Action for Quiet Title fails for lack of tender. Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477. Additionally, Plaintiff failed to allege facts, demonstrating tender would be inequitable. 5 th C/A Finally, the Fifth Cause of Action for Declaratory Relief fails as, based on the above findings, Plaintiff has not alleged an actual controversy. City of Cotati v. Cashman (2002) 29 Cal.4 th 69, 80. Lastly, leave to amend is denied, as the nature of Plaintiff s claim is clear, Plaintiff failed to show any manner in which the claims may be amended, and Plaintiff was provided a prior opportunity to amend and was unable to successfully state a claim Barrett Business Services, Inc. v Olsen Plaintiff Barrett Business Services, Inc s Motion to Compel Responses to Form Interrogatories, Set 1 and Requests for Production of Documents, Set 1 is granted. Defendants Coordinated Delivery & Installation, Inc and Flynn A. Olsen to provide written responses within 15 days. Plaintiff s motion to establish admissions, Set 1 is also granted and sanctions against Defendants Coordinated Delivery & Installation, Inc and Flynn A. Olsen and/or their counsel of record in the amount of $950 to be paid within 30 days. MP to give notice BRK Brands, Inc. v. Paul Hastings Janofsky & Walker LLP Gregg v. Dutton O/C

117 s 1 Page 7 of 8 9/5/2013 The court GRANTS the unopposed motions by Defendant State of California and Defendant California Highway Patrol to transfer this matter to the Superior Court of California, County of Riverside, pursuant to Govt. Code, and Code Civ. Proc., 396b. Plaintiffs shall pay the costs and fees of transferring this action, pursuant to Code Civ. Proc., 399, subd. (a). State of California shall serve notice of this order on all parties who have appeared in this case Frye v. Winkle Kucsan v JP Morgan Chase Bank, N.A Force v. Francis Cont to 10-8 The demurrer by defendant Orange Coast Memorial Medical Center is Sustained without leave to amend as to the 2 nd C/A for NIED. It is Sustained as to the 3 rd C/A for battery with 15 days leave to amend. The motion by defendant Orange Coast Memorial Medical Center to strike is moot. The 2 nd C/A is superfluous to the 1 st C/A for professional negligence. As to the 3 rd C/A plaintiff fails to allege facts showing that defendant committed a medical battery (i.e., when a doctor performs an operation to which the patient has not consented.) Glazer v. Lee Demurrer to Complaint is OVERRULED, in its entirety Defendants Demurrer, fails on its face to comply with CRC (d) and CRC (a); People ex rel. Flynn v. Abbott (1860) 16 Cal. 358, at Seidel Enterprises v. Universal Molding Defendant Universal Molding Company s Motion to Compel Further Responses to Form Interrogatories- Set 1 is granted.

118 s 1 Page 8 of 8 9/5/2013 Plaintiff is ordered to serve full and complete verified further responses, without objections within 15 days. Sanctions are awarded against Plaintiff in the amount of $860 to be paid within 30 days. MP to give notice.

119 s 1 Page 1 of 7 9/13/2013 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. September 12, 2013 # Case Name Tentative Bane v. Martynec Motion to Strike Motion for Relief from Default and Default Judgment Pursuant to CCP Section is DENIED. Sanctions as to both Plaintiff and Defendant are also DENIED. It is understood that the imposition of sanctions under CCP is an extreme remedy reserved for the rare and exceptional case where the action is clearly frivolous. Operating Engineers Pension Trust v. A-C Co. (9 th Cir. 1988) 859 F. 2d 1336, 1344 (referencing FRCP 11, which CCP was modeled after). While not addressing at this time the merits of defendant s pending motion the court does find that it rises to the level that it should be heard by the court. Contrary to plaintiff s claim that it should be stricken as frivolous. The court finds that as it is brought under C.C.P. 473(d) it is not the same ground as the prior denied motion nor is it subject to time limitations as it seeks from relief from a void judgment. Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761. [ a default that is void on the face of the record when entered is subject to challenge at any time. ]. For purposes of this Motion

120 s 1 Page 2 of 7 9/13/2013 the court finds that some justification exist for the filing of a second Motion for Relief under C.C.P. 473 (d), The Court declines to award sanctions under C.C.P Standard Microsystems Corp. v. Winbound Electronics Corp. (2009) 179 Cal.App.4 th 868, 891. Similarly, Defendant s request for sanctions against Plaintiff is denied, as unwarranted Inhale v. Worldwide Smoke Inc STARBUZZ S MOTION TO COMPEL The court DENIES Defendant Starbuzz Tobacco, Inc. s motion to compel Plaintiff Inhale Inc. to serve further responses to Starbuzz s Third Set of Requests for Admission, Nos and on the grounds that the motion appears moot in light of the further responses apparently served by Plaintiff Inhale Inc. on 08/20/13. However, the court awards monetary sanctions against Plaintiff in the amount of $ pursuant to Code Civ. Proc., , subd. (d), payable within 20 days after service of notice of this order. Starbuzz is to serve notice of this order. BARDS MOTION TO DISMISS/JUDGMENT ON THE PLEADINGS The court DENIES Defendant Hussam Bard s motion for an order dismissing him from this action or, in the alternative, granting him judgment on the pleadings as to Plaintiff Inhale Inc. s Fourth Amended Complaint. At the outset the court notes that Bard fails to cite any authority permitting the court to dismiss the claims against him by way of this motion. For example, Bard moves the court for dismissal pursuant to Code Civ. Proc., Bard repeatedly notes the mandatory language of Section , but overlooks the language limiting the application of that section to proceedings under this chapter in which the moving party is named as a respondent. This chapter refers to Code Civ. Proc., Part 3, Title 9, Chapter 4 ( Enforcement of the Award ), which governs petitions brought to confirm, correct, or vacate an arbitration award. The plain language of Section therefore applies only to the dismissal of such petitions. (See Mid-Wilshire Associates v. O Leary (1992) 7 CalApp.4th 1450, 1454; Younger & Bradley, Younger on California Motions (2012 ed.) 9:26.) Because the instant proceeding is not one to confirm, correct, or vacate an arbitration award, Section is simply inapplicable, and provides no authority for the court to dismiss the instant case.

121 s 1 Page 3 of 7 9/13/2013 The alternative request for judgment on the pleadings is without merit because it relies heavily on evidence that is not properly before the court because of the following: (1) it is not within the operative complaint; (2) no party asked the court to take judicial notice of it; and (3) it does not appear to be evidence of which the court could properly take judicial notice. It is therefore irrelevant as either a non-statutory motion for judgment on the pleadings or a motion for reconsideration of its prior order overruling Bard s demurrer Benowitz v. Highwinds Capital Lazar v Laguna Terrace Park, LLC Camaj v. Judge Law Firm O/C and Cont to 10/10 Cont to 10/17 Motion to Compel Further Responses is GRANTED in part. Further, the court finds that Given the representations made within the Opposition, indicating all documents were produced, Defendant is ordered to provide further verified discovery responses to Requests Nos , within 15 days of this order, which comply with C.C.P The court orders that with respect to Requests Nos , the motion is moot, given that supplemental responses were subsequently provided. Finally, as Defendant failed to provide a clear discovery response, indicating production was made and asserted numerous objections it subsequently abandoned, The court concludes that discovery monetary sanctions are justified. Accordingly, the court orders Defendant and Counsel, Kyle Kubisch, shall jointly pay sanctions to Plaintiff, in the amount of $1,600.00, within 15 days of this order (h) and C.C.P Mcfadden v. William Jordan Associates, Inc. The court DENIES Plaintiff Lauren McFadden s motion to deem facts admitted, but GRANTS the alternative request to compel Defendant William Jordan Associates, Inc. to serve further, verified responses to the Requests for Admission, Set One, without objection. The court awards monetary sanctions

122 s 1 Page 4 of 7 9/13/2013 against Defendant in the amount of $1, in connection with this motion. The court GRANTS Plaintiff s motion to compel Defendant to serve a verified response to the Form Interrogatories General, Set Two, Interrogatory No. 17.1, without objection. The court awards monetary sanctions against Defendant in the amount of $ in connection with this motion. Defendant is to serve the above-referenced responses and pay the monetary sanctions within 10 days after service of notice of this motion. Plaintiff is to serve notice of this motion Dowell v Original Mikes Enterpises LLC U.S. Bank National Association v. Khaloghi O/C Plaintiff s Motion for Summary Judgment/Summary Adjudication is DENIED. The moving party bears the burden of persuasion to demonstrate that there are no triable issues of material fact and that it is thus entitled to summary judgment as a matter of law. (C.C.P. 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 851.) Where the moving party is the plaintiff, the plaintiff must prove each element of the COA entitling the plaintiff to judgment thereon. (C.C.P. 437c(p) (1).) For summary adjudication, the 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. (C.C.P. 437c(f)(1).) If plaintiff cannot meet its burden, then the opposing party has no burden to oppose the motion by submitting evidence demonstrating that triable issues of fact exist. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4 th 832, 840. However, if the plaintiff carries its initial burden, then the party opposing the motion must produce admissible evidence to show that one or more triable issues of fact exist as to that cause of action or a defense thereto. (C.C.P. 437c(p)(1), (2); Green v. Ralee Engineering Co. (1998) 19 Cal.4 th 66, 72.) Further, The moving party s papers are to be strictly construed, while the opposing party s papers are to be liberally construed. (Comm. to Save Beverly Highland Homes Ass n v. Beverly Highland (2001) 92 Cal.App.4 th 1247, 1260.) A court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment: all evidentiary conflicts are to be resolved against the moving party.

123 s 1 Page 5 of 7 9/13/2013 (McCabe v. Am. Honda Motor Corp. (2002) 100 Cal.App.4 th 1111, 1119.) With these standards in mind the court proceeds below to review the evidence. While the court agrees that there are no disputes as to the existence and validity of the loan documents and the Guaranty, or to Plaintiff s rights as successor to the original lender, or that Borrower defaulted, or that the real property security was non-judicially foreclosed. (See Defendants responses re Fact Nos ) Nevertheless, the evidence proffered by plaintiff shows that there are disputed issues of material fact. Specifically, First, as to whether the Guaranty was breached. In support plaintiff submits that Borrower failed to surrender all net cash flows (Motion, p. 11) generated by the property during the post-default period and failed to pay or make deposits for all sums owed for taxes and insurance, and thus triggered 1(e), (g) and (h) of the Guaranty. This is disputed as Defendant claims that Borrower paid all net income to Plaintiff during that time, and that Plaintiff s claim is based entirely on mathematical miscalculations, so there was no breach of the Guaranty. (See Defendants responses re Fact Nos ) The material issue of fact is what sums were collected and what sums were paid to plaintiff? Thus given the concessions of miscalculations this gives rise to the issue of fact as to whether there was a breach of the Guaranty Mountain West Medical Inc. v. Eccard Newport Beach Dockowners v. Newport Beach City Council Molnar v. Margott Rossin v. Horowich Schaffer v. Ventreseca O/C Cont to 10/10 O/C O/C The court SUSTAINS the unopposed demurrer of Defendants Cesar Ventresca and Michele Houston- Ventresca to the Complaint, with leave to amend as plaintiff may be able to allege: (1) attempts to arbitrate; (2) waiver of the right to arbitrate; or (3) an unenforceable agreement.] Plaintiff is to file any amended complaint within 20 days after service of notice of this order. Demurring Defendants to serve notice of this order.

124 s 1 Page 6 of 7 9/13/ Morgan v. Hyatt Welch v. The Regents of the University of California No Tentative DEMURRER The court OVERRULES Defendant The Regents of the University of California s demurrer to the Sixth, Seventh, and Eighth Causes of Action in Plaintiff Joanne Welch s Third Amended Complaint. Plaintiff is ordered to file within 3 days after notice of this order a Further Notice of Errata re Third Amended Complaint, which attaches an executed, corrected copy of the TAC that reflects all prior corrections as well as the one noted above. Defendant is ordered to file and serve its answer to the TAC within 10 days thereafter. Sixth Cause of Action The court points out that plaintiff clarifies in her opposition that she intended to rely on Section 12940, subd. (j)(1), and that the reference to subdivision (j)(3) was a typographical error. Subdivision (j)(1) does appear applicable to the allegations of this claim and Defendant does not argue otherwise). This typographical error is easily corrected by way of a notice of errata. However, because Plaintiff has already filed a notice of errata regarding her TAC, a further notice is necessary. Seventh and Eighth Causes of Action. It appears that these causes of action were not included in any prior version of Plaintiff s complaint, and are based entirely on conduct that occurred after the instant action was commenced. Accordingly, they should not have been presented by way of an amended complaint, but by way of a supplemental complaint. (See Code Civ. Proc., 464, subd. (a); Radar v. Rogers (1957) 49 Cal.2d 243, 247.) But a supplemental complaint cannot be used to add causes of action district and independent from those present in the operative complaint. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Therefore, the Seventh and Eighth Causes of Action are not properly in this action. Notwithstanding, Defendant waived this objection because the court recalls that plaintiff filed the TAC, adding these causes of action, after moving the court for leave to do so. At that time Defendant received proper notice of that motion yet failed to respond or otherwise oppose the motion for leave. It can not now contest that

125 s 1 Page 7 of 7 9/13/2013 approved amended complaint with these new causes of action. Further, even if Defendant did not waive the objection there is no indication that defendant has suffered prejudice from permitting the new claims to proceed in this lawsuit Therefore, there seems to be no compelling reason to sustain the demurrer and require plaintiff to file a new lawsuit, just to have them consolidated for trial and return the parties to the very same position as they now face. MOTION TO STRIKE The court DENIES Defendant s motion to strike portions of Plaintiff s TAC. Defendant argues that the court should strike and of the TAC, on the grounds that those paragraphs contain nothing but allegations of facts arising after this lawsuit was filed, which support only the newly-added Seventh and Eighth Causes of Action. This argument is based on the same principles and authority as Defendant s demurrer to the Seventh and Eighth Causes of Action, and is denied for the same reasons discussed above. Defendant also argues that the court should strike various portions of the TAC containing allegations of conduct outside of the time periods framed by Plaintiff s DFEH claims and Govt. Code, Plaintiff responds by invoking the continuing violation doctrine, which permits a plaintiff to base claims of unlawful employment practices on events that would otherwise be time-barred where the events were part of a larger, continuing course of unlawful conduct. (See, e.g., Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.) Whether Plaintiff will ultimately be able to establish that the continuing violation doctrine is properly applied in this case, her allegations appear sufficient to invoke the doctrine for the purpose of surviving a motion to strike. Moreover, Defendant does not argue otherwise on reply.

126 TENTATIVE RULINGS ON LAW & MOTION MATTERS Department C-6 Judge Luis A. Rodriguez Law and Motion heard at 1:30 OBTAINING THE RULINGS: Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 ( ) for the ruling. Motions generally will not be continued after the tentative has been posted. PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE. APPEARANCES: If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will be necessary and the tentative will become the final ruling. If no one appears at the hearing and the court has not been notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling. ORAL ARGUMENT: All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion. No new issues may be raised at oral argument, but the attorneys should not merely restate their points and authorities. September 19, 2013 # Case Name Tentative Beck v. Shields Defendant A2Z Deck Coating, Inc s Motion for Summary Judgment, or alternatively, summary adjudication is DENIED. STANDARDS FOR SUMMARY JUDGMENT Summary Judgment provide[s]courts with the mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (cite omit) The court can properly grant a motion for summary judgment if all the papers submitted establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c subd.(c). Further, the party moving for Summary Judgment bears the initial burden of production to make a prima facia showing of the non-existence 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 facia case showing the existence of a triable issue of fact. Briefly, the undisputed facts are that defendant A2z was hired to install the waterproofing on the balcony decks as part of plaintiff s remodel of their home in A2z installed a pedestrian waterproofing system which was intended for pedestrian traffic and a final walking surface. Specifically, it installed Miracote Miraflex Repair Mortar II Deck Coating System. Defendant motion is limited to summary judgment on the sole cause of action for negligence because any summary adjudication would improperly require splitting negligence. Thus defendant must run the table so to speak that is show that there is no triable issue of fact supporting plaintiffs negligence claim against it. As explained below defendant is not even remotely

127 close to meeting this burden. Whether A2z s work fall below the standard of care In construction defect cases it is a battle of experts to determine if the actions fall below a standard of care. The question of whether an applicable standard of care has been breached is ordinarily one of fact. Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4 th 170, 175. This is particularly true when as here there is disputed expert opinion on this issue as such Summary judgment must be denied. For example, A2Z s expert does not believe the waterproofing is failing, any failure of the waterproofing was due to the improper installation of tile over a system that was not compatible thus causing the existing waterproofing to prematurely deteriorate. Directly opposite is the declaration of plaintiff s expert, Eric Domeier opines that the work by A2Z was below the standard of care. Specifically, that the Miracote Miraflex system is appropriate for use under a tile surface. Indeed, the manufacturer expressly states that this use is appropriate. Further, he opines that fault lies with the installation of the waterproofing system by pointing out that that the failure is throughout and not simply at the same areas as the guardrail failure. (See Declaration of Domeier generally and 7, 9.; (See Plaintiff s Separate Statement of Undisputed Material Facts Nos. 3, 12, 18, 19, 23, 24, 25, 27, 28, 29, 30, 31 which are disputed and additional facts 1 and 2. ) ; Domeier Declaration at 8, 9, Ex. 3.) A2Z s work was not a substantial factor in bringing about Plaintiff damage Again defendant faces the burden of showing no triable issue of fact as to the element of causation. He again fails why because causation is usually a question of fact for a jury unless, under undisputed facts, show there is no room for a reasonable difference of opinion. City of Los Angeles v. Shpegel-Dimsey, Inc (1988) 198 Cal.App.3d 1009, As pointed out above there is wide gulf separating the opinions of the partie s respective experts on what caused the failure of the deck. Defendant s expert opines that The installation of the glass railing on the curbs, which in my opinion is the main reason for the failure of the decks, is completely unrelated to the scope of work performed by A2Z and unrelated to the installation of the waterproofing membrane. Declaration of Marsch 16. In stark contrast plaintiff s expert contends, most or all of the flashing on the decks showed significant corrosion. This damage occurred throughout and was not limited just to the areas near the glass rails. This condition is indicative of prolonged exposure to moisture as noted in my report.this damage is completely separate from and unrelated to any damage caused by the guardrail system. Declaration of Domeier 8. See also Plaintiff s Separate Statement of Undisputed Material Facts Nos. 35, 44, 51, 52, 56, 57, 58, 60, 61, 62, 63, 64 which are disputed and additional facts 1 and Inhale Inc v. Worldwide Smoke Inc. s Defendant Starbuzz Tobacco, Inc s Motion to Compel Further Responses to Special Interrogatories (set 3

128 The Motion is GRANTED as to Special Rogs. Numbers 100, 102, 111, 113 as Plaintiff failed to respond as completely and as straightforward as the information reasonably permits. The motion is denied as to Special Rogs Numbers , and 112. Further responses due within 20 days. Request for sanctions is DENIED. Moving party to give Notice. Defendant Starbuzz Tobacco, Inc. s motion to compel Plaintiff Inhale Inc. to serve further responses to Starbuzz s Third Set of Form Interrogatories, Nos The court DENIES Defendant Starbuzz Tobacco, Inc. s motion to compel Plaintiff Inhale Inc. to serve further responses to Starbuzz s Third Set of Form Interrogatories, Nos on the grounds that the motion appears moot in light of the further responses apparently served by Plaintiff Inhale Inc. on 08/20/13. However, the court awards monetary sanctions against Plaintiff in the amount of $459.00, payable within 20 days after service of notice of this order. Starbuzz is to serve notice of this order. Motion for protective order directing that a 2 nd deposition of Plaintiff s PMK not be taken by Defendant Starbuzz Tobacco, Inc and Wael Elhalawani Hynes v. Avocado Pacific Communities LLC The Motion for Protective Order is DENIED. It is clear from the transcript of the prior Deposition of Chaoui that, to the extent there was new information with respect to damages, other e- mails, any correspondence, Defendants reserved the right to have another deposition to address those issues. Also, defense counsel pointed out (leave to file) a Fourth Amended Complaint was pending before the court and therefore because of that, defendants reserved the right to call Mr. Chaoui for deposition. To all of this, Mr. Teran (plaintiff s counsel), specifically stated, So stipulated (See Chaun Declaration, Ex. B pg. 229:8), so it is difficult to see how Plaintiff is now complaining about the 2 nd deposition. The Fourth Amended Complaint was in fact allowed to be filed adding a new cause of action against Starbuzz defendants for intentional interference with the manufacturing agreement between Inhale and Worldwide. Therefore, good cause exists for Mr. Chaoui to sit for a second deposition. Sanctions against Plaintiff in the amount of $560 are awarded and to be paid within 20 days after service of this order. Responding Party to Give Notice. : Defendants Motion for Judgment on the Pleadings is DENIED. Defendants judicial notice request is GRANTED. The issue of Standing As to Standing this claim fails because according to the SAC, the Agreement, as Plaintiff allegedly signed it, was between Plaintiff personally (among others), as seller, and Sugarman personally, as buyer, and concerned a sale of the sellers respective membership interests in Bayside. (SAC 10; Ex. 1.) Plaintiff thus has standing to assert claims based on an alleged breach of that Agreement on her own behalf. Although Plaintiff also alleged in the SAC that it was APC that promised to make the required payments, and that both Sugarman and APC failed to

129 perform under the terms of the Agreement (SAC 11, 20), these allegations at most create an uncertainty in the pleadings, which would be an appropriate basis for a demurrer, but not for the instant motion. (See Code Civ. Proc (f) [demurrer] and 438(c) [MJOP].) The Statute of Limitations In order to prevail that the SOL applies defendant must show clearly and affirmatively from the pleading that the statute has run. It is not enough that the claim might be barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, ].) Here, the SAC as pled claims that two events had to occur before the obligation to make the second payment would accrue. Further, defendants have not offered any evidence subject to judicial notice to establish when both events in fact occurred. As a result, even though Plaintiff may ultimately be unable to avoid a limitations bar it can t be achieved with this limited motion The issue of Collateral Estoppel Defendants claim that the action is barred under the doctrine of collateral estoppel also fails. Defendants have argued generally that issues in a different proceeding (in which Plaintiff was evidently not a party) were the same, and then pointed to papers filed in that prior proceeding as proof thereof. (Motion, pp. 8 and 9; Reply p. 4.) However, the other action clearly involved other parties and issues, and the final determination upon which Defendants rely was a ruling on a demurrer. Therefore, even if there was some overlap between that action and this one, Defendants have failed to meet their burden to establish that all of the requirements for collateral estoppel are established here. The Fraud claim Finally, Defendants are correct that a fraud claim cannot ordinarily be premised upon a breach of contract. Here, however, Plaintiff has alleged more than just a breach of contract she has also alleged that the Agreement she signed was later interlineated, and then used as a means to effectuate further transfers. (SAC ) These allegations, although not a model of clarity, thus appear to go beyond a pure breach of contract claim Gasca v The Home Depot U.S.A., Inc. The court DENIES Defendant Home Depot U.S.A., Inc. s motion for summary judgment as to Plaintiff Maria Gasca s First Amended Complaint. The alternative motion for summary adjudication is GRANTED as to Issues 9, 10, 11, 22, and 24, and otherwise DENIED. The court DENIES Defendant Mario Mora s motion for summary adjudication. In connection with these motions, the court sustains Defendants Objection No. 3 to Plaintiff s evidence. The parties objections are otherwise overruled. The court also grants Defendants

130 unopposed request for judicial notice. Defendants are to serve notice of this order. STANDARDS FOR SUMMARY JUDGMENT Summary Judgment provide[s]courts with the mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (cite omit) The court can properly grant a motion for summary judgment if all the papers submitted establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c subd.(c). Further, the party moving for Summary Judgment bears the initial burden of production to make a prima facia showing of the non-existence 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 facia case showing the existence of a triable issue of fact. ISSUES 1-3 (FIRST CAUSE OF ACTION) Home Depot s first 3 issues for summary adjudication seek to establish that Plaintiff s First Cause of Action for sexual harassment fails as a matter of law because the alleged harassment: (1) was not committed within the scope of employment; (2) does not have a causal nexus to Plaintiff s work; and (3) was not severe enough or sufficiently pervasive to alter the conditions of employment and create a hostile work environment. Plaintiffs are not entitled to summary adjudication of these issues. The Only Harassment At Issue Is An Alleged Assault By Defendant Mora Plaintiff s First Cause of Action is for sexual harassment based on a hostile work environment theory. (FAC, 8.) More specifically, Plaintiff alleges that her work environment was made hostile by sexually harassing conduct by Randy McFall (FAC, 10-19), an unnamed Second Harasser (FAC, 20-23), and a sexual assault by Defendant Mora on 12/01/11 (FAC, 24-34). In the course of this litigation, Plaintiff stipulated that she is not relying on any conduct of McFall to support this claim. (UMF 32.) Plaintiff also admits in her response to Defendants Separate Statement of Undisputed Material Facts that she is not specifically seeking damages for the allegedly harassing conduct of the Second Harasser. (Plaintiff s Responses to UMF ) Therefore, the only allegedly harassing conduct at issue is the alleged assault by Mora on 12/01/11. (See UMF 54.) However, despite this concession plaintiff seeks to link Mora s harassing conduct as being made during the course of her employment. (See Plaintiff s Response to UMF 54; Plaintiff s Dec, 7.) Defendant correctly objects to this reversal as it goes beyond the allegations of plaintiff s FAC. (See Plaintiff Depo, 352:7-10.) This is new conduct which is subject to Summary Adjudication (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493; Benavides v. City of San Jose Police Department (1999) 71 Cal.App.4th 853,

131 861, 862.) But plaintiff also urges that this is evidence that demonstrate that Mora was Plaintiff s supervisor within the meaning of the FEHA. The court agrees. A Triable Issue of Fact Exists As To Whether Mora Was Plaintiff s Supervisor As an initial matter, it should be noted that the parties rely exclusively on federal authority that analyzes the definition of supervisor under Title VII. The FEHA contains a statutory definition of supervisor that differs from the one used for Title VII, rendering the parties authority of only marginal relevance. Under the FEHA, a supervisor is: any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (Govt. Code, 12926, subd. (s).) As applied plaintiff offers evidence that: (1) Mora had authority to investigate and effectively recommend the termination of employees (including Plaintiff) in the course of his loss-prevention investigations; and (2) Mora directed Plaintiff s work on at least some occasions. (Plaintiff Depo, 263:12-264:1; Plaintiff Dec, 2.) This evidence is sufficient to show a triable issue as to whether Mora was Plaintiff s supervisor within the meaning of the FEHA. Moreover, applying the deferential standard applicable to motions for summary adjudication and the requirement that courts construe the FEHA broadly, to protect employees rights to seek and hold employment without discrimination. (Chapman v. Enos (2004) 116 Cal.App.4th 920, 931.) Further, defendant s proffer no evidence to establish the existence of a completely private relationship between Plaintiff and Mora, such as a personal dating relationship, at the time of the alleged assault. This is critical because even a single assault involving much less violent behavior than the conduct alleged here constitutes actionable conduct sufficient to defeat summary judgment/adjudication of a claim for sexual harassment. (Myers v. Trendwest Resorts, Inc., supra, 148 Cal.App.4th at p [single incident of physical groping by supervisor].) ISSUES 5-7 (SECOND CAUSE OF ACTION) As defendant s have lost on Issues 1-3 above, plaintiff s Second Cause of Action for failure to prevent sexual harassment is also defeats summary disposition as plaintiff has met its burden by offering a triable issue as to whether Mora was Plaintiff s supervisor within the meaning of the FEHA. ISSUES 8-9 (THIRD CAUSE OF ACTION) Issues 8 and 9 seek to establish that Plaintiff s Third Cause of Action for sexual battery fail as a matter of law because the alleged battery: (1) was not committed within the scope of employment; and (2) did not have a causal nexus to Plaintiff s employment. Home Depot is entitled to summary adjudication because

132 plaintiff has failed to show that the sexual battery had a causal nexus to plaintiff s employment In contrast to plaintiff s first and second cause of action dealing with sexual harassment Home Depot s potential liability for sexual battery is narrower because liability is premised under on agency principles and on statutory principles embodied in the FEHA. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, ) Here, Home Depot will only be liable for Mora s conduct only if there is a causal nexus between his conduct and his employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297) and this element is dispositive. Thus, the claimed sexual battery must have either been an outgrowth of the employment or a generally foreseeable consequence of the employment. (Id. at plaintiff ) A tort is an outgrown of the employment where it is motivated by reasons fairly attributable to work-related events or conditions). (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at pp ) Here, the battery occurred after hours, off of Home Depot s property, after Plaintiff and Mora got drinks. (See UMF 112.) Indeed, plaintiff s own version of events strongly suggests that Mora s motivating reasons for the battery were personal and not fairly attributable to work-related events or conditions. (See Plaintiff s UMF 373, ) For example, his attempt to use company-issued handcuffs during the battery and his reputation as a womanizer even if true do not show that this is a sufficient nexus that Mora s sexual battery on plaintiff grew from plaintiff s employment with Home Depot. Plaintiff has offered no evidence to refute this. Next is there vicarious liability because the sexual battery of Mora was a foreseeable consequence of plaintiff s employment? Again the answer is no because a reasonably foreseeable consequent of employment is only shown if in the context of the particular enterprise an employee s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer s business. (Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 302.) Here, there is no evidence suggesting that Mora s duties as an Asset Protection Specialist predict that he would sexually batter a coworker after hours. The court is not persuaded with plaintiff s analogy to police officers abusing their authority to engage in sexual torts should apply. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at pp [imposition of vicarious liability for officer s sexual assault flowed from the unique authority vested in police officers ].) Why because there is no evidence that Home Depot gave Mora any power to exercise general control over Plaintiff s liberty or any coercive authority over Mora at all. ISSUES (FIFTH AND SIXTH CAUSES OF ACTION) Plaintiff s Sixth Cause of Action alleges that Home Depot violated the FEHA by terminating her employment in retaliation for complaining of sexual harassment. Plaintiff s Fifth Cause of Action is for wrongful termination in violation of public policy, based on the same termination and the public policy embodied in the same provision of the FEHA. Accordingly, they can be easily treated together. Defendant Home Depot proffers evidence that plaintiff had nothing other than her belief that the two incidents were

133 related, plus the fact that Mora was allowed to return to Plaintiff s store 2 days after she was terminated. (UMF 146.) Responding to this evidence plaintiff offers evidence that the person who decided to terminate her Kimberly Martin called Plaintiff a cancer, But no evidence whether Martin began doing so only after Plaintiff complained about Mora, why Martin called Plaintiff a cancer, or what Martin meant by doing so. Neither is the proffer of facts that that the investigation that led to her termination was deficient since plaintiff offers no additional evidence to even infer that the investigation was motivated or affected by Plaintiff s complaint regarding Mora. In short, Plaintiff failed to show any triable issue as to whether her complaint about Mora was actually the cause of her termination. ISSUES AND 23 (SEVENTH, EIGHTH, NINTH, TENTH, AND TWELFTH CAUSES OF ACTION) These issues seek to establish that Plaintiff s Seventh, Eighth, Ninth, Tenth, and Twelfth Causes of Action have no merit. These issues are moot because Plaintiff dismissed those causes of action with prejudice. ISSUES 17, 19, AND (ELEVENTH CAUSE OF ACTION) These issues seek to establish that Plaintiff s Eleventh Cause of Action for IIED fails as a matter of law because it is: (1) preempted by Workers Compensation exclusivity; (2) personnel management decisions cannot form the basis of a claim for IIED; (3) the alleged harassment and battery were not committed in the course of Plaintiff s employment; and (4) the alleged harassment and battery do not have a causal nexus to Plaintiff s employment. Home Depot is entitled to summary adjudication on issue number 22. First, as discussed in connection with Issue 9 above, the standard for holding Home Depot liable for Mora s alleged torts is narrower than the standard for holding it liable for his sexually harassing conduct. Second, the undisputed material facts before the court establish that Plaintiff cannot show the causal nexus necessary to hold Home Depot liable for the tortious conduct at issue. Therefore, while Plaintiff may nevertheless seek emotional distress damages in connection with her surviving claims against Home Depot, this separate cause of action for IIED fails as a matter of law. ISSUES (PUNITIVE DAMAGES) It appears undisputed that Plaintiff seeks punitive damages pursuant to Civ. Code, 3294 is based on Mora s conduct and the decision to terminate Plaintiff s employment made by Store Manager Kimberly Martin. The standard to apply is that no employer may be liable for punitive damages under Section 3294 based upon its employee s conduct 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. (Civ. Code, 3294, subd. (b).) With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or

134 act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Ibid.) Here, defendants have met their burden by proffering evidence that neither Mora or Martin were corporate officers, corporate directors, or managing agents of Home Depot. (UMF ) This is not sufficiently disputed by plaintiff evidence which only shows that at best Mora s and Martin s authority, was limited to the store in which they worked. (See Plaintiff s Response to UMF ) Missing from plaintiff s proffer is any evidence even remotely showing that Mora or Martin exercised substantial discretionary authority over significant aspects of [Home Depot s] business, or substantial discretionary authority over decisions that ultimately determine corporate policy. (See White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573, [defining managing agent for purpose of Section 3294].) MORA S ISSUES ISSUE 4 (FIRST CAUSE OF ACTION) Mora first seeks to establish that Plaintiff s First Cause of Action for sexual harassment fails as a matter of law because the alleged harassment was not severe or pervasive enough to alter Plaintiff s employment and create a hostile work environment. This argument relies on the same evidence and law on which Home Depot relies for Issue 3. As discussed above, Defendants failed to carry their burden as to Issue 3. Therefore, and for the same reasons, Mora is not entitled to summary adjudication of this issue. ISSUES 18 AND 20 (ELEVENTH CAUSE OF ACTION) Issues 18 and 20 seek to establish that Plaintiff s Eleventh Cause of Action for IIED fails as a matter of law because: (1) it is preempted by Workers' Compensation exclusivity; and (2) personnel management decisions cannot form the basis of an intentional infliction of emotional distress claim. On both issues defendants fail to carry their burden as to Issue 18 because a claim for distress caused by conduct amounting to unlawful harassment is not preempted by Worker s Compensation exclusivity. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) In addition, defendants also fail to carry their burden as to Issue 20 because Plaintiff s claim for IIED against Mora is based on the alleged sexual assault, which cannot be properly characterized as a personnel management decision Bulkin v. Bank of America N.A. Defendants Bank of America, N.A and ReconTrust Company, N.A. s demurrer is SUSTAINED with 20 days leave to amend. RJN is Granted. As to the fraud causes of action (1 st, 2 nd, 3 rd ) these are, in general, not pled with requisite specificity. The 1 st c/a for Fraud and 5 th c/a for Negligence appear barred by the applicable statutes of limitation. Regarding the 4 th c/a for Accounting it fails because Plaintiff does not allege any debt was owed from any Defendant, as required.

135 As to the 6 th c/a for Breach of the Duty of Good Faith and Fair Dealing fails because Plaintiff cannot point to any express terms in the DOT or Note which require that Defendants honestly deal [with him nor are there any express terms which require Defendants to provide him w/ modified loan terms that Plaintiff finds acceptable. It is not enough to allege that plaintiff believes he is entitled to a better loan since defendant had no duty to provide one. The 7 th c/ for Violation of B&P Code fails as it is simply a duplicate of Plaintiff s other defective causes of action. Finally, 8 th c/a for Promissory Estoppel fails because Plaintiff does not plead a clear and unambiguous promise. He claims only that he reasonably presumed that by complying with the Defendant s request, an amenable loan modification would be had. FAC 71. Simply because he is told he prequalifies for a loan modification does not mean he is promised a loan modification Le v Watkins Collins v. Lumenis Motion to be Relieved as Counsel of Record is granted. Defendant s Motion for Summary Judgment is DENIED. Additionally, Adjudication of Issues Nos. 1-4, 7-8, 10, 12-15, and is DENIED. Adjudication of Issues Nos. 5, 9, 11, 16 and 18 is GRANTED. Adjudication of Issues Nos. 6 and 17 are MOOT. Additionally, the Court rules as follows on Defendant s evidentiary objections: Overruled: Nos. 1-16, 18-31, 34-44, and Sustained: Nos. 17, 32-33, 45 and 60. STANDARDS FOR SUMMARY JUDGMENT Summary Judgment provide[s]courts with the mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (cite omit) The court can properly grant a motion for summary judgment if all the papers submitted establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c subd.(c). Further, the party moving for Summary Judgment bears the initial burden of production to make a prima facia showing of the non-existence 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 facia case showing the existence of a triable issue of fact. Grafted on to these general standards are the standards that are specific to claims of Discrimination. Standard Applied to Claims of Discrimination When a Plaintiff alleges discrimination in violation of FEHA, and the Defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, to determine whether there are triable issues of fact for resolution by a jury. Guz v. Bechtel Nat.Inc.

136 (2000) 24 Cal.4 th 317, 354. In the first stage, the Plaintiff must establish a prima facie case of discrimination. Id. Generally, the Plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstances suggest discriminatory motive. Id. at 355. Next, if the employee successfully establishes these elements, the burden shifts to the employer to provide evidence that there was a legitimate, nondiscriminatory reason for the adverse employment action. Id. at Finally, [i]f the employer sustains this burden, the presumption of discrimination disappears. The Plaintiff must then have the opportunity to attack the proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. Id. at 356. This then requires the burden to shift back to the employee to provide substantial responsive evidence that the employer s proffered reasons were untrue or pretextual. Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4 th 1102, To establish pretext plaintiff must offer evidence that discriminatory reasons more likely motivated the employer or indirectly show that the employer s proffered explanation is unworthy of credence. Morgan v. Regents of University of California (2000) 88 Cal.App.4 th 52, 68. This evidence although circumstantial must be specific and substantial in order to create a triable issue. Id. at 68-69; however, in determining whether the above stated burdens are met, the Court must view the evidence in the light most favorable to Plaintiff, as the non-moving party, liberally construing her evidence while strictly scrutinizing Defendants. Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986, To each of the below causes of action the court applies both the above general and specific standards. First and Second Causes of Action: Gender and Age Discrimination (Issues Nos. 1-4): As explained in Hersant v. Department of Social Services (1997) 57 Cal.App.4 th 997, a prima facie case of age discrimination is established where the employee shows: (1) at the time of the adverse action he or she was 40 years of age or older; (2) an adverse employment action was taken against the employee; (3) at the time of the adverse action the employee was satisfactorily performing his or her job; and (4) the employee was replaced in his position by a significantly younger person. Id. at Applying this test in the context of gender discrimination, a prima facie case is established when an individual demonstrates they were satisfactorily performing their job prior to being replaced by a member of the opposite sex. Vincent v. Brewer Co. (2007) 514 F.3d 489, 495. Here, it is undisputed that Plaintiff is a 58 year old woman. Additionally, it is undisputed that Plaintiff was demoted from her Director position and offered a position as a Manager. (See Declaration of Mr. Fowlks, Director of Human Resources at Lumenis the position Mr. DiSilvio offered to Ms. Collins was a demotion in title. ( 7)). Finally, it is apparently undisputed that Plaintiff was performing well in her position. Indeed, the evidence demonstrates that Ms. Collins received positive evaluations. ( 5 and 6 of Collins Dec. and DiSilvio Dep. 121: 2-4 and 50:5-52:20). Despite these facts defendant argues that as a matter of law plaintiff has failed to show evidence that plaintiff was

137 replaced rather the all the evidence points to that Mr.Merrit who is 42 years was offered a new Director position. ( 14 of DiSilvo Dec.). As further support that plaintiff was not replaced is his testimony that While some of Ms. Collins prior responsibilities were absorbed by Mr. Merritt, the majority of her duties remained the same establishing GPO contracts which is evident in the National Accounts/IDN Manager job description which I prepared. ( 7 of Fowlks Dec.). Plaintiff counters this new position that she performed all of the functions and responsibilities identified in the job description provided to Mr. Merrit. ( 12 of Collins Dec.). Further, plaintiff testifies that while employed as the Director of National Accounts, she managed Government distributions and distributions in Canada. ( of Collins Dec.). Finally, proffers the testimony of Mr. McMillan, a National Accounts Manager who reported to plaintiff that Mr. Merritt performed the same functions in the director position as Ms. Collins had, including responsibility for the National Accounts and Government contracts. ( 5 of McMillan Dec.). Based on the above, Plaintiff has produced evidence demonstrating she was replaced by Mr. Merritt (a substantially younger man), sufficient to support prima facie claims of both, sex and age discrimination. This finding that defendant has failed to negate the replacement element renders it unnecessary to address Issues Nos. 1 and 3except to deny them. Next, Defendant attempts to demonstrate a legitimate nondiscriminatory motive for Plaintiff s demotion by arguing: (1) Plaintiff was not a candidate/unqualified for the new position; and (2) the demotion resulted merely from a reorganization of Defendant s sales force. (MSJ: 7:4-10). Both of these are rejected by the court. Firstly, while Mr. DiSilvio declares that Ms. Collins lacked leadership qualities and innovation, which disqualified her from the new position ( 9-11 of DiSilvio Dec.), given the evidence indicating the positions were substantially the same and Ms. Collins prior positive evaluations, sufficient evidence exists to dispute this testimony. Second, this evidence is disputed by the testimony of Mr. Hampton, the former Senior Vice President of Lumenis, who declares that Plaintiff continued to excel in all aspects of her job, including in her leadership and teamwork skills. ( 4 of Hampton Dec.). Given this evidence it is insufficient to demonstrate a legitimate non-discriminatory basis for the demotion. (Ms. Collins Depo: 78:3-79:3). In sum while evidence has been presented, to indicate Defendant s stated reason for demoting Plaintiff and potentially replacing her with a much younger man, are false. This evidence raises triable issues of fact. (Issues Nos. 2 and 4). Third Cause of Action: Retaliation: To establish a prima facie case of retaliation under the FEHA, a plaintiff must show: (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986, Here, Defendant disputes the existence of a causal connection between Plaintiff s termination and the protected activity (her Complaint to DFEH) offering the following evidence:

138 Mr. Fowlks declares that, on January 31, 2012 prior to Plaintiff s February 3, 2012 termination, Plaintiff communicated to him that she was choosing the severance option and, thus, declining the Manager position. ( 15 of Fowlks Dec.). Plaintiff unequivocally testified within her Deposition, that on January 31, 2012 she told Mr. Folwks I want the severance agreement. (Ms. Collins Depo: 128:16-20). Exhibit F of Mr. Fowlks Declaration is a February 2, from Plaintiff, wherein she states: I had 21 days to review the severance agreement, through January 31st and, accordingly, called you on January 31st and informed you that I would accept the severance agreement (Exhibit F of Fowlks Dec.). Exhibit F : I m not resigning from my employment with Lumenis, she again makes clear I wish to accept a severance package. (Exhibit F ). Plaintiff s declaration denies the above however it is clear that her testimony is contradicted by her Deposition testimony and other exhibits. Thus, even liberally viewing her evidence she communicated to Mr. Fowlks an intent to end her employment. In the alternative to support retaliation plaintiff offers evidence that she had through January 31 st to consider severance. (Exhibit F of Fowlks Dec.). But again plaintiff s own testimony contradicts her. Q: As of December 29 th, 2011 was it your understanding from Guy Fowlks that you had only two options: Accept the demotion or accept the severance. Otherwise your employment would be terminated? A: Yes. (Ms. Collins Depo: 88:2-6).. Consequently, pursuant to Collins v. Hertz Corp. (2006) 144 Cal.App.4 th 64, where representations included within declarations are contradicted by deposition testimony, they are insufficient to defeat summary judgment. Id. at 79. The evidence proffered by defendant coupled with plaintiff s contradictions establishes that plaintiff would have been terminated, regardless of the DFEH complaint, either through her voluntary request for severance on January 31, 2012 or her failure to make a decision. As a matter of law no claim exists for retaliation. As to defendant s Request for Adjudication of Issue No. 5 is GRANTED. The Request for Adjudication of Issue No. 6 is subsequently rendered moot. Fourth Cause of Action: Failure to Prevent Discrimination and Retaliation: Plaintiff's Fourth Cause of Action for Failure to Prevent Discrimination and Retaliation arises under Government Code 12940(k), which requires employers to take all reasonable steps necessary to prevent discrimination. California Fair

139 Employment and Housing Com n v. Gemini Aluminum Corp. (2004) 122 Cal.App.4 th 1004, able steps include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle complaints and grievances regarding discrimination. Id. Here, Defendant provides, as Exhibit H to the Declaration of Mr. Fowlk s a copy of its Employee Handbook, which establishes antidiscrimination policies and indicates Defendant is an equal opportunity employer. Based on the above, Defendant asserts it took reasonable steps to prevent discrimination and retaliation. Plaintiff, in response, merely asserts that this claim necessarily survives, based on the First, Second and Third Causes of Action. However, the failure to prevent discrimination is not the same as a failure to take reasonable steps and, as Plaintiff fails to demonstrate any reasonable steps Defendant failed to take. Fifth and Sixth Causes of Action: Wrongful Demotion and Wrongful Termination in Violation of Public Policy: Both parties concede that the Fifth Cause of Action for Wrongful Demotion in Violation of Public Policy, rises and falls with Plaintiff's discrimination claims. Thus, as the First and Second Causes of Action survive, issues are denied. Similarly, both parties concede that the Sixth Cause of Action for Wrongful Termination in Violation of Public Policy, rises and falls with the claim for Retaliation, thus, for the reasons articulated above, adjudication of the Sixth Cause of Action is granted. Seventh Cause of Action: Breach of the Implied Covenant of Good Faith: Plaintiff s claim appears to assert she was unfairly terminated. Pursuant to Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 and Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4 th 317, a claim for Breach of the Implied Covenant, in relation to an at-will employment agreement may be possible. However, such a claim cannot logically be based on a claim that the discharge [of an at-will employee] was made without good cause. Id. at 350. Thus, this claim goes against the principle articulated in Guz. Eighth Cause of Action: Intentional Infliction of Emotional Distress: As explained in Accardi v. Superior Court (1993) 17 Cal.App.4 th 341: Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers compensation law The Legislature, however, did not intend than an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer s illegal discriminatory practices.

140 Id. at 352 (abrogated by Richards v. CH2M Hill, Inc. (2001) 26 Cal.4 th 798 on a different point (continuing harassment doctrine)). Thus, the instant claim is not barred by the California Worker s Compensation Act. Similarly, as Plaintiff s claims for discrimination survive, evidence of outrageous conduct exists. Punitive Damages Here, as Plaintiff s claims for discrimination survive, and triable issues remain as to whether Mr. DiSilvio (Defendant s President of the North Americas Region) unlawfully discriminated against Plaintiff, sufficient evidence of oppression by a corporate officer exists Kattan v Martin Motion to Compel Production is GRANTED, in its entirety. Mr. Franklin is ordered to produce documents responsive to Requests Nos. 1-2, 5-6 and 9-10, within 15 days of this order Voit v Malliet Cross-Defendant Voit Real Estate Services, L.P. s demurrer is SUSTAINED with 20 days leave to amend. RJN is GRANTED. Defendant challenges the 2 nd c/a for Breach of Fiduciary Duty, the 7 th c/a for Intentional Interference with Economic Advantage and Contractual Relationships, 8 th c/a for Negligent Interference with Economic Advantage and Contractual Relationships, 9 th c/a for Appointment of Receiver and 10 th c/a for Judicial Dissolution. The basis to attack these claims is that they all are infected by the lack of standing to bring a derivative claim. It appears clear that Malliet intended to bring these causes of action as derivative claims. For example, at 53 of the Cross-Complaint states Malliet is entitled, under Corporations Code and for the reasons otherwise alleged in this Complaint, to institute and maintain an action in right of VRES LLC. VRES LLC, as a limited partner of VRES LP at all times relevant to this Complaint, is entitled under Corporations Code to bring a derivative action to enforce rights of VRES LP. Indeed, Corporations Code states: (a) A derivative action may be maintained only by a person that is a partner at the time the action is commenced. HERE, it is clear that from the Cross-Complaint itself that Malliet is not a partner of the LP, and thus cannot bring a derivative action. Malliet makes the argument that The court rejects Malliet claim that since he is a 20% owner of the LLC, which in turn is the sole limited partner of the LP, that somehow this fact circumvents the language of the statute. However, It is axiomatic that in interpretation of a statute where the language is clear, its plan meaning should be followed. Great Lakes Properties, Inc v. City of El Segundo (1977) 19 Cal.3d 152, 155. Further, no authority is offered holding that a party who never had ownership in the stock of the subject company or a partnership interest in the subject company has a direct right to the partnership interest in order to bring a derivative action.

141

142 # Case Name Tentative Lee v. Ko (1) Demurrer to Third Amended Complaint (Ko): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendant shall file an Answer to the Third Amended Complaint, within 10 days of this order. Defendant Ko s Request for Judicial Notice is GRANTED. [The merits of the claims are discussed below, in connection with the Demurrer filed by Defendants Kim and BCRK.] (2) Demurrer to Third Amended Complaint (Kim and BCRK): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendants shall file an Answer to the Third Amended Complaint, within 10 days of this order. First. the Demurrers are timely (a) and C.C.P. 1013(a. Even if not the court will exercise its discretion to consider the merits. Additionally, regardless, the Court has discretion Jackson v. Doe (2011) 192 Cal.App.4 th 742, 749. Adding new causes of action Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court s order. Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4 th 1018, Or the new cause of action is within the scope to that granted leave to amend. Here, the court previously ruled that plaintiff s seventh cause of action of Assumption of Successor Liability is not a cause of action. Plaintiff was given leave to plead this allegation in relation to specific claims to render defendants liable. Contrary to plaintiff s interpretation the court did not give plaintiff any permission except leave to add successor liability allegations to Plaintiff s remaining claims (the First through Fifth Causes of Action), to any extent Plaintiff sought to hold Defendants Carol Kim and BCRK, Inc. liable within these actions. Not to bring new claims against defendants Koudriavtseva v. Versailles on the Lake The motion of Defendants/Judgment Creditors Domino Realty Management Company, Inc. and Versailles Lakes Investors, Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verified responses to first sets of post-judgment special interrogatories and requests for production is DENIED. The Proofs of Service attached to the discovery at issue reflect that it was served on Plaintiff s counsel on 04/16/13. (Motion, Exhs. A and B.) On 03/05/13, however, equally clear is that plaintiff filed a substitution of attorney leaving her self-

143 represented. No subsequent substitution of attorney was filed. Therefore, Defendants failed to properly serve the written discovery on plaintiff so plaintiff never became obligated to respond to it. Defendants are to serve notice of this order Quick v Starlight Cinemas, Inc The instant Motion to be Relieved is GRANTED, as Counsel has fully complied with the requirements articulated in CRC Additionally, as Counsel declares that a breakdown in the attorney-client relationship has occurred, relief is appropriate California Bank & Trust, as aasignee of the Federal Deposit Corporation, as receiver for Vineyard Bank v. Hemstreet Motion for Leave to File First Amended Complaint is GRANTED. Plaintiffs are ordered to file and serve an executed copy of the FAC attached as Exhibit A to Ms. Encheff s Declaration, within 3 court days of the date of this order. This action is in its early stages, thus, no prejudice or unnecessary delay will result to Defendants. Further, leave to amend is granted as Plaintiff s motion complies with CRC GrunBaum v Hudson Cross-Complainant s Motion for Summary Judgment on the sole remaining cause of action (the Second, for Declaratory Relief) is DENIED. Simply put moving party has not met her burden to establish each element of the cause of action entitling her to judgment thereon. (C.C.P. 437c(p)(1).) For example, although moving party argues that the contingency in the Short Sale Addendum (for both lenders to consent to the terms of the short sale purchase agreement) did not timely occur, the evidence proffered is not sufficient. First, under the purchase agreement, the deadline for lender approval was 45 days after the time the offer or final counter offer is accepted in writing by a party and personally delivered to and personally received by the other party or that party s authorized agent. (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be 12/7/11, as that is the date on the final counter-offer accepted by Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X- Complaint, Hudson alleges that 19), that the Acceptance date had passed on 12/22/11, based on the original PA. Second, the court points out that moving party did not identify or discuss the application of this provision. The failure to challenge this critical fact dictates finding that she has failed to meet her burden to prevail on Summary Judgment. Third, the court points out that moving party has failed to proffer sufficient evidence to establish that she was entitled to cancel the agreement if she could not recover the incentives from Chase, as the contract documents

144 do not appear to include any such term as a condition of the proposed sale, and she cites to no evidence to suggest otherwise. Instead, she incorrectly relies on the SSA provisions claiming that she not have to agree to any of Short Sale Lenders proposed terms. (UF 11.) However, the only term in US Bank s response that she objected to was a requirement that she not receive any proceeds from the sale. (UF 19.) Since moving party has failed to establish that either the PA or the SSA provided otherwise, she has not established that this term required any change to the terms of the purchase contract. Finally, she has also failed to establish that Plaintiffs actually cancelled the purchase agreement. She proffers evidence of cancellation from the one communication from Mr. Grunbaum to Ms. Elton dated January 20, (UF 22.) However, it is this is not a cancellation. In sum, the evidence submitted thus fails to establish, for purposes of summary judgment, that Plaintiffs cancelled the sale on 1/20/12. Indeed plaintiffs evidence suggest the opposite is true as it points out that neither Plaintiffs nor Brokers understood that communication to be a cancellation, and that it was never intended to be submitted to moving party. (UF 22; Grunbaum Decl., 3, 4.) Therefore, even if that communication were deemed sufficient to shift the burden on summary judgment, there would still be an issue of material fact as to the intent and effect of that communication. Moving party to give notice Grisknoss v. THC-Orange County, Inc. The court DENIES AS MOOT the motions by Defendants Kindred Healthcare Operating, Inc. and THC Orange County, Inc. for summary judgment as to Plaintiff Donald Griskonis s First Amended Complaint or, in the alternative, summary adjudication as to certain issues. The instant motions were filed and served on 04/11/13, and are directed at Plaintiff Donald Griskonis s FAC. Four months later, the parties stipulated to permit Plaintiff to file the SAC. The SAC supersedes the FAC, mooting motions directed to the prior complaint. (State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. (Ibid.) This order is without prejudice to Defendants right to move for summary judgment and/or adjudication as to Plaintiffs SAC. Defendants are to serve notice of this order Elements Food Group, Inc. v. Fowler Defendant Tom Fowler and Food Makers Bakery Equipment, Inc s Demurrer to the Second Amended Complaint is Overuled as to the 2 nd C/A for Fraud and Deceit the 4 th C/A for for Violation of Penal Code 496(a) the Demurrer to the 5 th C/A for Violation of Penal Code 496(a) (embezzlement by agent) and 6 th C/A for Violation of Penal Code 496(a) (embezzlement by bailee) is sustained without leave to amend Deceit is a promise, made without any intention of performing it.

145 Cal Civ Code 1710(4). Here, is it is clear from the SAC that Defendant essentially promised that he would pick up the slicer in order to do a demo for a buyer and sell it. See SAC 18. However, that promise of essentially acquiring the slicer for the purpose of helping Plaintiff to sell it was false because a) defendant did not have a buyer at the time the representation was made [SAC 21a]; Defendant told Plaintiff the slicer was already sold when Plaintiff indicated he wanted the return of the slicer for plaintiff s own use when in fact the slicer had not been sold [SAC 21b]; Defendant did not in fact perform a demonstration; for nearly five months defendant would not return the slicer and only returned it when Plaintiff filed this lawsuit. SAC 21d. As to the 4 th C/A plaintiff alleges that defendants obtained the slicer by making the misrepresentations of material fact (that Defendants had a buyer for the Grote Slicer and that they were going to provide a demonstration of the Slicer immediately), and by making the false promises alleged above in order to induce Plaintiff to part with the Grote Slicer, Defendant in effect stole said Grote Slicer from Plaintiff. SAC 34. This is sufficient for pleading purposes. The court rejects defendant s claim as there has been no conviction there can be no claim. We hold, based on the statutory language, a criminal conviction under section 496(a) is not a prerequisite to recovery of treble damages under section 496(c). We also hold the phrase any manner constituting theft under section 496(a) includes theft by false pretense Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043] But the court agrees that plaintiff s use of other penal code sections are duplicative moreover, plaintiff did not seek leave to add them to the SAC Talebdoost v. Viking Range Corporation Defendant Viking s Demurrer is OVERRULED and the motion to strike DENIED. Plaintiff has adequately pled the express warranty pursuant to Cal. Comm. Code 2313 in 43 of the FAC. As to IIED, whether failing to remove a product from the market or properly devising a product to fix the hazardous product despite being fined and injuring consumers is sufficiently outrageous conduct should be determined by the trier of fact. Defendant Executive Appliance Services, Inc s demurrer is OVERRULED. Plaitniff has pled sufficient facts to state a cause of action for Breach of Express Warranty and IIED. Motion to strike is DENIED Aquarium Industrial, Inc. v. Imagine Gold LLC The Motion filed by The Law Offices of Thomas Nowland to be relieved as counsel to Defendant Imagine America Limited Liability Company is GRANTED, subject to prompt submission of a proposed Order reflecting the next scheduled Status Conference date.

146 A.A.E. Services Inc. v. West Hills Construction Inc. s Defendant s Demurrer is SUSTAINED as to the First Cause of Action, with 20 days leave to amend. The balance of the Demurrer has been withdrawn by Defendant. The Requests for Judicial Notice, both of which pertained thereto, are thus MOOT. Defendant s Motion to Strike is also MOOT, as it pertains only to the prayer for attorney s fees in the First Cause of Action. Defendant to give notice McFadden v. William Jordon Associates Plaintiff Lauren McFadden s motion to compel the production of documents responsive to the deposition notices/subpoenas served by Plaintiff for the depositions of Mickey Payne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller is DENIED. Plaintiff s request for monetary sanctions against Defendant William Jordan Associates, Inc. and Defendant s counsel is DENIED. The basis for the instant motion is a failure by four percipient witnesses to produce documents at deposition. The proper remedy would have been to bring a motion to compel those witnesses to produce the documents at a subsequent deposition session, and for an award of sanctions against the witnesses. (See Code Civ. Proc., , subd. (a) [employees of party], , subd. (a) [any deponent].) However, Plaintiff brought the instant motion seeks to compel Defendant to produce documents, and seeks an award of monetary sanctions against Defendant and Defendant s counsel. The proof of service attached to the moving papers reflects that it was served on Defendant (through its counsel), but not on any of the deponents. Plaintiff therefore failed to direct this motion at the proper persons US Bank v. Bella Terra s Motion for Termination of Receivership and Approval of Final Account is GRANTED. The Court makes the following orders: 1. The Receivership is terminated; 2. The Receiver is discharged; 3. The Receiver s actions and expenditures, through the Final Report and Accounting, are approved; 4. The Receiver is authorized to deliver possession of the paper records of the Receivership Estate to any party requesting such documents, and shall deliver such documents to the Defendant, within 10 days of this order; and 5. All surety bonds are exonerated. Further, the Receiver is authorized to pay its remaining expenses, in the amount of $10,000, from the remaining funds on hand. Lastly, the Receiver shall return all of the remaining funds in the receivership, approximately $142,000, to Plaintiff.

147 The Court declines to maintain the Receivership, pending the Motion for Attorney s Fees, as Defendant has presented no evidence demonstrating the Trust lacks the assets to pay any judgment against it and such an order may significantly extend the Receivership. Motion for Attorney s Fees is DENIED. Defendant failed to demonstrate that it is the prevailing party under the Loan Agreement, as required to obtain a recovery of attorney s fees. Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4 th 918;. Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 and Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4 th 515, 535.

148 # Case Name Tentative Lee v. Ko (1) Demurrer to Third Amended Complaint (Ko): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendant shall file an Answer to the Third Amended Complaint, within 10 days of this order. Defendant Ko s Request for Judicial Notice is GRANTED. [The merits of the claims are discussed below, in connection with the Demurrer filed by Defendants Kim and BCRK.] (2) Demurrer to Third Amended Complaint (Kim and BCRK): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendants shall file an Answer to the Third Amended Complaint, within 10 days of this order. First. the Demurrers are timely (a) and C.C.P. 1013(a. Even if not the court will exercise its discretion to consider the merits. Additionally, regardless, the Court has discretion Jackson v. Doe (2011) 192 Cal.App.4 th 742, 749. Adding new causes of action Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court s order. Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4 th 1018, Or the new cause of action is within the scope to that granted leave to amend. Here, the court previously ruled that plaintiff s seventh cause of action of Assumption of Successor Liability is not a cause of action. Plaintiff was given leave to plead this allegation in relation to specific claims to render defendants liable. Contrary to plaintiff s interpretation the court did not give plaintiff any permission except leave to add successor liability allegations to Plaintiff s remaining claims (the First through Fifth Causes of Action), to any extent Plaintiff sought to hold Defendants Carol Kim and BCRK, Inc. liable within these actions. Not to bring new claims against defendants Koudriavtseva v. Versailles on the Lake The motion of Defendants/Judgment Creditors Domino Realty Management Company, Inc. and Versailles Lakes Investors, Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verified responses to first sets of post-judgment special interrogatories and requests for production is DENIED. The Proofs of Service attached to the discovery at issue reflect that it was served on Plaintiff s counsel on 04/16/13. (Motion, Exhs. A and B.) On 03/05/13, however, equally clear is that plaintiff filed a substitution of attorney leaving her self-

149 represented. No subsequent substitution of attorney was filed. Therefore, Defendants failed to properly serve the written discovery on plaintiff so plaintiff never became obligated to respond to it. Defendants are to serve notice of this order Quick v Starlight Cinemas, Inc The instant Motion to be Relieved is GRANTED, as Counsel has fully complied with the requirements articulated in CRC Additionally, as Counsel declares that a breakdown in the attorney-client relationship has occurred, relief is appropriate California Bank & Trust, as aasignee of the Federal Deposit Corporation, as receiver for Vineyard Bank v. Hemstreet Motion for Leave to File First Amended Complaint is GRANTED. Plaintiffs are ordered to file and serve an executed copy of the FAC attached as Exhibit A to Ms. Encheff s Declaration, within 3 court days of the date of this order. This action is in its early stages, thus, no prejudice or unnecessary delay will result to Defendants. Further, leave to amend is granted as Plaintiff s motion complies with CRC GrunBaum v Hudson Cross-Complainant s Motion for Summary Judgment on the sole remaining cause of action (the Second, for Declaratory Relief) is DENIED. Simply put moving party has not met her burden to establish each element of the cause of action entitling her to judgment thereon. (C.C.P. 437c(p)(1).) For example, although moving party argues that the contingency in the Short Sale Addendum (for both lenders to consent to the terms of the short sale purchase agreement) did not timely occur, the evidence proffered is not sufficient. First, under the purchase agreement, the deadline for lender approval was 45 days after the time the offer or final counter offer is accepted in writing by a party and personally delivered to and personally received by the other party or that party s authorized agent. (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be 12/7/11, as that is the date on the final counter-offer accepted by Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X- Complaint, Hudson alleges that 19), that the Acceptance date had passed on 12/22/11, based on the original PA. Second, the court points out that moving party did not identify or discuss the application of this provision. The failure to challenge this critical fact dictates finding that she has failed to meet her burden to prevail on Summary Judgment. Third, the court points out that moving party has failed to proffer sufficient evidence to establish that she was entitled to cancel the agreement if she could not recover the incentives from Chase, as the contract documents

150 do not appear to include any such term as a condition of the proposed sale, and she cites to no evidence to suggest otherwise. Instead, she incorrectly relies on the SSA provisions claiming that she not have to agree to any of Short Sale Lenders proposed terms. (UF 11.) However, the only term in US Bank s response that she objected to was a requirement that she not receive any proceeds from the sale. (UF 19.) Since moving party has failed to establish that either the PA or the SSA provided otherwise, she has not established that this term required any change to the terms of the purchase contract. Finally, she has also failed to establish that Plaintiffs actually cancelled the purchase agreement. She proffers evidence of cancellation from the one communication from Mr. Grunbaum to Ms. Elton dated January 20, (UF 22.) However, it is this is not a cancellation. In sum, the evidence submitted thus fails to establish, for purposes of summary judgment, that Plaintiffs cancelled the sale on 1/20/12. Indeed plaintiffs evidence suggest the opposite is true as it points out that neither Plaintiffs nor Brokers understood that communication to be a cancellation, and that it was never intended to be submitted to moving party. (UF 22; Grunbaum Decl., 3, 4.) Therefore, even if that communication were deemed sufficient to shift the burden on summary judgment, there would still be an issue of material fact as to the intent and effect of that communication. Moving party to give notice Grisknoss v. THC-Orange County, Inc. The court DENIES AS MOOT the motions by Defendants Kindred Healthcare Operating, Inc. and THC Orange County, Inc. for summary judgment as to Plaintiff Donald Griskonis s First Amended Complaint or, in the alternative, summary adjudication as to certain issues. The instant motions were filed and served on 04/11/13, and are directed at Plaintiff Donald Griskonis s FAC. Four months later, the parties stipulated to permit Plaintiff to file the SAC. The SAC supersedes the FAC, mooting motions directed to the prior complaint. (State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. (Ibid.) This order is without prejudice to Defendants right to move for summary judgment and/or adjudication as to Plaintiffs SAC. Defendants are to serve notice of this order Elements Food Group, Inc. v. Fowler Defendant Tom Fowler and Food Makers Bakery Equipment, Inc s Demurrer to the Second Amended Complaint is Overuled as to the 2 nd C/A for Fraud and Deceit the 4 th C/A for for Violation of Penal Code 496(a) the Demurrer to the 5 th C/A for Violation of Penal Code 496(a) (embezzlement by agent) and 6 th C/A for Violation of Penal Code 496(a) (embezzlement by bailee) is sustained without leave to amend Deceit is a promise, made without any intention of performing it.

151 Cal Civ Code 1710(4). Here, is it is clear from the SAC that Defendant essentially promised that he would pick up the slicer in order to do a demo for a buyer and sell it. See SAC 18. However, that promise of essentially acquiring the slicer for the purpose of helping Plaintiff to sell it was false because a) defendant did not have a buyer at the time the representation was made [SAC 21a]; Defendant told Plaintiff the slicer was already sold when Plaintiff indicated he wanted the return of the slicer for plaintiff s own use when in fact the slicer had not been sold [SAC 21b]; Defendant did not in fact perform a demonstration; for nearly five months defendant would not return the slicer and only returned it when Plaintiff filed this lawsuit. SAC 21d. As to the 4 th C/A plaintiff alleges that defendants obtained the slicer by making the misrepresentations of material fact (that Defendants had a buyer for the Grote Slicer and that they were going to provide a demonstration of the Slicer immediately), and by making the false promises alleged above in order to induce Plaintiff to part with the Grote Slicer, Defendant in effect stole said Grote Slicer from Plaintiff. SAC 34. This is sufficient for pleading purposes. The court rejects defendant s claim as there has been no conviction there can be no claim. We hold, based on the statutory language, a criminal conviction under section 496(a) is not a prerequisite to recovery of treble damages under section 496(c). We also hold the phrase any manner constituting theft under section 496(a) includes theft by false pretense Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043] But the court agrees that plaintiff s use of other penal code sections are duplicative moreover, plaintiff did not seek leave to add them to the SAC Talebdoost v. Viking Range Corporation Defendant Viking s Demurrer is OVERRULED and the motion to strike DENIED. Plaintiff has adequately pled the express warranty pursuant to Cal. Comm. Code 2313 in 43 of the FAC. As to IIED, whether failing to remove a product from the market or properly devising a product to fix the hazardous product despite being fined and injuring consumers is sufficiently outrageous conduct should be determined by the trier of fact. Defendant Executive Appliance Services, Inc s demurrer is OVERRULED. Plaitniff has pled sufficient facts to state a cause of action for Breach of Express Warranty and IIED. Motion to strike is DENIED Aquarium Industrial, Inc. v. Imagine Gold LLC The Motion filed by The Law Offices of Thomas Nowland to be relieved as counsel to Defendant Imagine America Limited Liability Company is GRANTED, subject to prompt submission of a proposed Order reflecting the next scheduled Status Conference date.

152 A.A.E. Services Inc. v. West Hills Construction Inc. s Defendant s Demurrer is SUSTAINED as to the First Cause of Action, with 20 days leave to amend. The balance of the Demurrer has been withdrawn by Defendant. The Requests for Judicial Notice, both of which pertained thereto, are thus MOOT. Defendant s Motion to Strike is also MOOT, as it pertains only to the prayer for attorney s fees in the First Cause of Action. Defendant to give notice McFadden v. William Jordon Associates Plaintiff Lauren McFadden s motion to compel the production of documents responsive to the deposition notices/subpoenas served by Plaintiff for the depositions of Mickey Payne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller is DENIED. Plaintiff s request for monetary sanctions against Defendant William Jordan Associates, Inc. and Defendant s counsel is DENIED. The basis for the instant motion is a failure by four percipient witnesses to produce documents at deposition. The proper remedy would have been to bring a motion to compel those witnesses to produce the documents at a subsequent deposition session, and for an award of sanctions against the witnesses. (See Code Civ. Proc., , subd. (a) [employees of party], , subd. (a) [any deponent].) However, Plaintiff brought the instant motion seeks to compel Defendant to produce documents, and seeks an award of monetary sanctions against Defendant and Defendant s counsel. The proof of service attached to the moving papers reflects that it was served on Defendant (through its counsel), but not on any of the deponents. Plaintiff therefore failed to direct this motion at the proper persons US Bank v. Bella Terra s Motion for Termination of Receivership and Approval of Final Account is GRANTED. The Court makes the following orders: 1. The Receivership is terminated; 2. The Receiver is discharged; 3. The Receiver s actions and expenditures, through the Final Report and Accounting, are approved; 4. The Receiver is authorized to deliver possession of the paper records of the Receivership Estate to any party requesting such documents, and shall deliver such documents to the Defendant, within 10 days of this order; and 5. All surety bonds are exonerated. Further, the Receiver is authorized to pay its remaining expenses, in the amount of $10,000, from the remaining funds on hand. Lastly, the Receiver shall return all of the remaining funds in the receivership, approximately $142,000, to Plaintiff.

153 The Court declines to maintain the Receivership, pending the Motion for Attorney s Fees, as Defendant has presented no evidence demonstrating the Trust lacks the assets to pay any judgment against it and such an order may significantly extend the Receivership. Motion for Attorney s Fees is DENIED. Defendant failed to demonstrate that it is the prevailing party under the Loan Agreement, as required to obtain a recovery of attorney s fees. Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4 th 918;. Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 and Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4 th 515, 535.

154 # Case Name Tentative Lee v. Ko (1) Demurrer to Third Amended Complaint (Ko): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendant shall file an Answer to the Third Amended Complaint, within 10 days of this order. Defendant Ko s Request for Judicial Notice is GRANTED. [The merits of the claims are discussed below, in connection with the Demurrer filed by Defendants Kim and BCRK.] (2) Demurrer to Third Amended Complaint (Kim and BCRK): SUSTAINED, without leave to amend, as to the Sixth and Seventh Causes of Action. OVERRULED, as to the Fifth Cause of Action. Defendants shall file an Answer to the Third Amended Complaint, within 10 days of this order. First. the Demurrers are timely (a) and C.C.P. 1013(a. Even if not the court will exercise its discretion to consider the merits. Additionally, regardless, the Court has discretion Jackson v. Doe (2011) 192 Cal.App.4 th 742, 749. Adding new causes of action Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court s order. Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4 th 1018, Or the new cause of action is within the scope to that granted leave to amend. Here, the court previously ruled that plaintiff s seventh cause of action of Assumption of Successor Liability is not a cause of action. Plaintiff was given leave to plead this allegation in relation to specific claims to render defendants liable. Contrary to plaintiff s interpretation the court did not give plaintiff any permission except leave to add successor liability allegations to Plaintiff s remaining claims (the First through Fifth Causes of Action), to any extent Plaintiff sought to hold Defendants Carol Kim and BCRK, Inc. liable within these actions. Not to bring new claims against defendants Koudriavtseva v. Versailles on the Lake The motion of Defendants/Judgment Creditors Domino Realty Management Company, Inc. and Versailles Lakes Investors, Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verified responses to first sets of post-judgment special interrogatories and requests for production is DENIED. The Proofs of Service attached to the discovery at issue reflect that it was served on Plaintiff s counsel on 04/16/13. (Motion, Exhs. A and B.) On 03/05/13, however, equally clear is that plaintiff filed a substitution of attorney leaving her self-

155 represented. No subsequent substitution of attorney was filed. Therefore, Defendants failed to properly serve the written discovery on plaintiff so plaintiff never became obligated to respond to it. Defendants are to serve notice of this order Quick v Starlight Cinemas, Inc The instant Motion to be Relieved is GRANTED, as Counsel has fully complied with the requirements articulated in CRC Additionally, as Counsel declares that a breakdown in the attorney-client relationship has occurred, relief is appropriate California Bank & Trust, as aasignee of the Federal Deposit Corporation, as receiver for Vineyard Bank v. Hemstreet Motion for Leave to File First Amended Complaint is GRANTED. Plaintiffs are ordered to file and serve an executed copy of the FAC attached as Exhibit A to Ms. Encheff s Declaration, within 3 court days of the date of this order. This action is in its early stages, thus, no prejudice or unnecessary delay will result to Defendants. Further, leave to amend is granted as Plaintiff s motion complies with CRC GrunBaum v Hudson Cross-Complainant s Motion for Summary Judgment on the sole remaining cause of action (the Second, for Declaratory Relief) is DENIED. Simply put moving party has not met her burden to establish each element of the cause of action entitling her to judgment thereon. (C.C.P. 437c(p)(1).) For example, although moving party argues that the contingency in the Short Sale Addendum (for both lenders to consent to the terms of the short sale purchase agreement) did not timely occur, the evidence proffered is not sufficient. First, under the purchase agreement, the deadline for lender approval was 45 days after the time the offer or final counter offer is accepted in writing by a party and personally delivered to and personally received by the other party or that party s authorized agent. (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be 12/7/11, as that is the date on the final counter-offer accepted by Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X- Complaint, Hudson alleges that 19), that the Acceptance date had passed on 12/22/11, based on the original PA. Second, the court points out that moving party did not identify or discuss the application of this provision. The failure to challenge this critical fact dictates finding that she has failed to meet her burden to prevail on Summary Judgment. Third, the court points out that moving party has failed to proffer sufficient evidence to establish that she was entitled to cancel the agreement if she could not recover the incentives from Chase, as the contract documents

156 do not appear to include any such term as a condition of the proposed sale, and she cites to no evidence to suggest otherwise. Instead, she incorrectly relies on the SSA provisions claiming that she not have to agree to any of Short Sale Lenders proposed terms. (UF 11.) However, the only term in US Bank s response that she objected to was a requirement that she not receive any proceeds from the sale. (UF 19.) Since moving party has failed to establish that either the PA or the SSA provided otherwise, she has not established that this term required any change to the terms of the purchase contract. Finally, she has also failed to establish that Plaintiffs actually cancelled the purchase agreement. She proffers evidence of cancellation from the one communication from Mr. Grunbaum to Ms. Elton dated January 20, (UF 22.) However, it is this is not a cancellation. In sum, the evidence submitted thus fails to establish, for purposes of summary judgment, that Plaintiffs cancelled the sale on 1/20/12. Indeed plaintiffs evidence suggest the opposite is true as it points out that neither Plaintiffs nor Brokers understood that communication to be a cancellation, and that it was never intended to be submitted to moving party. (UF 22; Grunbaum Decl., 3, 4.) Therefore, even if that communication were deemed sufficient to shift the burden on summary judgment, there would still be an issue of material fact as to the intent and effect of that communication. Moving party to give notice Grisknoss v. THC-Orange County, Inc. The court DENIES AS MOOT the motions by Defendants Kindred Healthcare Operating, Inc. and THC Orange County, Inc. for summary judgment as to Plaintiff Donald Griskonis s First Amended Complaint or, in the alternative, summary adjudication as to certain issues. The instant motions were filed and served on 04/11/13, and are directed at Plaintiff Donald Griskonis s FAC. Four months later, the parties stipulated to permit Plaintiff to file the SAC. The SAC supersedes the FAC, mooting motions directed to the prior complaint. (State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. (Ibid.) This order is without prejudice to Defendants right to move for summary judgment and/or adjudication as to Plaintiffs SAC. Defendants are to serve notice of this order Elements Food Group, Inc. v. Fowler Defendant Tom Fowler and Food Makers Bakery Equipment, Inc s Demurrer to the Second Amended Complaint is Overuled as to the 2 nd C/A for Fraud and Deceit the 4 th C/A for for Violation of Penal Code 496(a) the Demurrer to the 5 th C/A for Violation of Penal Code 496(a) (embezzlement by agent) and 6 th C/A for Violation of Penal Code 496(a) (embezzlement by bailee) is sustained without leave to amend Deceit is a promise, made without any intention of performing it.

157 Cal Civ Code 1710(4). Here, is it is clear from the SAC that Defendant essentially promised that he would pick up the slicer in order to do a demo for a buyer and sell it. See SAC 18. However, that promise of essentially acquiring the slicer for the purpose of helping Plaintiff to sell it was false because a) defendant did not have a buyer at the time the representation was made [SAC 21a]; Defendant told Plaintiff the slicer was already sold when Plaintiff indicated he wanted the return of the slicer for plaintiff s own use when in fact the slicer had not been sold [SAC 21b]; Defendant did not in fact perform a demonstration; for nearly five months defendant would not return the slicer and only returned it when Plaintiff filed this lawsuit. SAC 21d. As to the 4 th C/A plaintiff alleges that defendants obtained the slicer by making the misrepresentations of material fact (that Defendants had a buyer for the Grote Slicer and that they were going to provide a demonstration of the Slicer immediately), and by making the false promises alleged above in order to induce Plaintiff to part with the Grote Slicer, Defendant in effect stole said Grote Slicer from Plaintiff. SAC 34. This is sufficient for pleading purposes. The court rejects defendant s claim as there has been no conviction there can be no claim. We hold, based on the statutory language, a criminal conviction under section 496(a) is not a prerequisite to recovery of treble damages under section 496(c). We also hold the phrase any manner constituting theft under section 496(a) includes theft by false pretense Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043] But the court agrees that plaintiff s use of other penal code sections are duplicative moreover, plaintiff did not seek leave to add them to the SAC Talebdoost v. Viking Range Corporation Defendant Viking s Demurrer is OVERRULED and the motion to strike DENIED. Plaintiff has adequately pled the express warranty pursuant to Cal. Comm. Code 2313 in 43 of the FAC. As to IIED, whether failing to remove a product from the market or properly devising a product to fix the hazardous product despite being fined and injuring consumers is sufficiently outrageous conduct should be determined by the trier of fact. Defendant Executive Appliance Services, Inc s demurrer is OVERRULED. Plaitniff has pled sufficient facts to state a cause of action for Breach of Express Warranty and IIED. Motion to strike is DENIED Aquarium Industrial, Inc. v. Imagine Gold LLC The Motion filed by The Law Offices of Thomas Nowland to be relieved as counsel to Defendant Imagine America Limited Liability Company is GRANTED, subject to prompt submission of a proposed Order reflecting the next scheduled Status Conference date.

158 A.A.E. Services Inc. v. West Hills Construction Inc. s Defendant s Demurrer is SUSTAINED as to the First Cause of Action, with 20 days leave to amend. The balance of the Demurrer has been withdrawn by Defendant. The Requests for Judicial Notice, both of which pertained thereto, are thus MOOT. Defendant s Motion to Strike is also MOOT, as it pertains only to the prayer for attorney s fees in the First Cause of Action. Defendant to give notice McFadden v. William Jordon Associates Plaintiff Lauren McFadden s motion to compel the production of documents responsive to the deposition notices/subpoenas served by Plaintiff for the depositions of Mickey Payne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller is DENIED. Plaintiff s request for monetary sanctions against Defendant William Jordan Associates, Inc. and Defendant s counsel is DENIED. The basis for the instant motion is a failure by four percipient witnesses to produce documents at deposition. The proper remedy would have been to bring a motion to compel those witnesses to produce the documents at a subsequent deposition session, and for an award of sanctions against the witnesses. (See Code Civ. Proc., , subd. (a) [employees of party], , subd. (a) [any deponent].) However, Plaintiff brought the instant motion seeks to compel Defendant to produce documents, and seeks an award of monetary sanctions against Defendant and Defendant s counsel. The proof of service attached to the moving papers reflects that it was served on Defendant (through its counsel), but not on any of the deponents. Plaintiff therefore failed to direct this motion at the proper persons US Bank v. Bella Terra s Motion for Termination of Receivership and Approval of Final Account is GRANTED. The Court makes the following orders: 1. The Receivership is terminated; 2. The Receiver is discharged; 3. The Receiver s actions and expenditures, through the Final Report and Accounting, are approved; 4. The Receiver is authorized to deliver possession of the paper records of the Receivership Estate to any party requesting such documents, and shall deliver such documents to the Defendant, within 10 days of this order; and 5. All surety bonds are exonerated. Further, the Receiver is authorized to pay its remaining expenses, in the amount of $10,000, from the remaining funds on hand. Lastly, the Receiver shall return all of the remaining funds in the receivership, approximately $142,000, to Plaintiff.

159 The Court declines to maintain the Receivership, pending the Motion for Attorney s Fees, as Defendant has presented no evidence demonstrating the Trust lacks the assets to pay any judgment against it and such an order may significantly extend the Receivership. Motion for Attorney s Fees is DENIED. Defendant failed to demonstrate that it is the prevailing party under the Loan Agreement, as required to obtain a recovery of attorney s fees. Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4 th 918;. Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 and Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4 th 515, 535.

160 # Case Name Tentative Colford v. Nunez Plaintiff s Motions to Compel Further Responses to Requests For Admissions and to Form Interrogatories, as filed on 9/24/13, are GRANTED. Defendant Annette Nunez shall provide supplemental responses thereto within 10 days after service of notice of this Order. Plaintiff to give notice Maldonado v. Shaw-Sproul Defendant Linda Shaw s Motion for Summary Judgment is GRANTED as a matter of law. As a matter of law plaintiff has failed to show a legal duty by permitting a zone of danger. Plaintiff has cited no authority in its opposition that an exception to the rule below is liability for creating a zone of danger. Rather this concept is more a description of conduct rather than a variant of a recognized duty because as general matter, there is no duty to act to protect others from the conduct of third parties. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, However, A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a special relationship with the other person. Here, the evidence offered is that Shaw and Maldonado had been romantically involved and whether they had carried on this romance is unclear from the evidence. However, what is undisputed is that they did not have the recognized special relationships that impose an affirmative duty to protect a 3 rd party. For example, Maldonado was not a business invitee (cite omit) nor was Shaw his landlord( cite omit) At best she is a former lover, girlfriend who is still on occasion seeing her ex- boyfriend. Plaintiff offer no case that an ex-girlfriend and boyfriend by virtue of their involvement in the past that they owe a legal duty to protect from harm each other from the violent behavior of a third party. On this ground alone defendants have met their burden that as there is no duty on Shaw there is no liability for the actions of Ostrom her apparent new boyfriend and lover. As there is no special relationship then the existence of duty which is a legal question turns on an analysis of the following factors: (1) the foreseeability of harm; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of connection between the plaintiff's injury and the landowner's conduct; (4) the moral blame attached to the landowner's conduct; (5) the policy of preventing future harm; (6) the burden on the landowner and the consequences to the community of imposing a duty on the landowner; and (7) the availability, cost, and prevalence of insurance for the risk. FORSEEABILITY OF HARM Even if we take all of Plaintiffs versions of the events as true, that this was essentially a lovers triangle (as opposed to Shaw and Decedent having been broken up), that Maldonado told Shaw he was coming over and Shaw told Ostrom, that Shaw

161 knew Maldonado was angry and drunk and used steroids and wanted to fight Ostrom there is no evidence that Shaw could have possibly foreseen Maldonado pushing past Shaw and ultimately, Ostrom shooting him. This is because although as a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, , it also is well established that, as a general matter, there is no duty to act to protect others from the conduct of third parties. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, In addition, it appears to the court that to conclude that it was reasonably forseeable would require evidence that Shaw knew what Maldanado intented if she opened the door and that with that knowledge it was reasonably foreseeable that he would go past her and be shot by Ostrom. The court can infer multiple scenarios based on the versions that would be reasonably foreseeable that Maldonado would not be subject to harm if she let him in. Plaintiff has failed to proffer facts meeting this critical component of imposing a duty to prevent Maldonados s harm. DEGREE OF CERTAINTY THAT THE PLAINTIFF SUFFERED INJURY. There is no dispute that Maldonado died from his gunshot wounds. THE CLOSENESS OF CONNECTION BETWEEN THE PLAINTIFF S INJURY AND THE LANDOWNER S CONDUCT The thrust of Plaintiffs entire argument is that Shaw created the zone of danger in her home by opening her door. If she had not opened the door, Maldonado may not have been shot, that is true. However, she did not open the door and invite him in knowing he wanted to beat up her new boyfriend. Rather, the facts are undisputed that she opened the door to try to neutralize the situation and he pushed past her into the home. Maldonado s conduct is more connected to his injury than Shaw s conduct in opening the door. He came to the home after Shaw told him not to. He arrived late at night, pounding on doors and yelling. Although Shaw opened the door, he pushed past her. He was in a drunken rage and it is likely that something violent would have happened that night irrespective of whether Shaw opened the door or not. THE MORAL BLAME ATTACHED TO THE LANDOWNER S CONDUCT There is no moral blame attached to a homeowner for opening her door to a known friend. She cannot know his state of mind when she opened the door. She cannot know Ostrom s state of mind in shooting Maldonado. The only moral blame here is that the three were caught in a lover s triangle where they all knew about one another not sure how much moral blame can even be assigned. THE POLICY OF PREVENTING FUTURE HARM: It is impossible to conceive how imposing a duty under these circumstances would prevent future harm. THE BURDEN ON THE LANDOWNER AND CONSEQUENCES TO THE COMMUNITY OF IMPOSING A DUTY ON THE LANDOWNER

162 The burden on Shaw to not open her door and wait for the police was minimal. THE AVAILABILITY, COST, PREVALENCE OF INSURANCE FOR THE RISK This appears to be a non-issue Zimmmerman v. Wheel Solutions, Inc. Plaintiff Jason Zimmerman s Motions to Compel Further Responses to Form Interrogatory 15.1 (motions 1 and 3), are GRANTED, sanctions in the amount of $ against each defendant (Glenn Paul Roberts and Wheel Solutions Inc). Defendants failed to properly answer the sub-parts of this interrogatory and fail to establish responding would be oppressive. Plaintiff Jason Zimmerman s Motions to Compel Further Responses to Request for Production of Documents (motions 2 and 4), motions are DENIED and sanctions against Plaintiff in the amount of $775 total. Defendants have provided supplemental responses and have produced all the documents in their custody, possession, or control. Plaintiff cites to no authority that Defendants must produce documents in the control of subcontractors. Further responses are due within 20 days. Sanctions to be paid within 30 days. MP to give notice Newport Beach Dockowners Association v. Newport Beach City Council The court GRANTS Defendant Newport Beach City Council s motion for an order striking the following portions of the Amended Complaint and Petition of Plaintiffs Newport Beach Dockowners Association, Robert McCaffrey, and Coalition to Preserve Newport Harbor: 5, 11-23, and 31; 9, lines ( This working group was formed tideland use issues. ); 25, lines ( The City staff report dated meeting and adopted. ; and 33, line 27 ( commercial and ). The court grants Defendant s request for judicial notice of its Exhibits B, J, K, and M (Evid. Code, 452, subd. (b) and 453) and Exhibits A, C-I, and L (Evid. Code, 452, subd. (c) and

163 453). Defendant s request is denied as to its Exhibits N and O. Plaintiffs shall file any amended complaint within 10 days after service of notice of this order. Defendant shall serve notice of this order. The heart of the dispute presented in this motion is whether as a matter of law Plaintiffs Demand to Cure letter satisfied the Brown Act s pre-filing requirement as to certain allegations in the Amended Complaint and Petition. (See Govt. Code, , subds. (b) and (c).) That issue cannot be decided at this time, because the Demand to Cure letter is not properly before the court. It is not attached to the Amended Complaint and Petition, nor is it properly the subject of judicial notice because there is no evidence before the court sufficient to show that either document was an enactment or official act of Defendant. (See Evid. Code, 452, subds. (b) and (c); Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 857, fn. 2 [judicial notice not properly taken under Section 452(c) or (h) of certain papers filed with state and federal agencies].) As to the Motion to Strike the motion has merit because Plaintiffs fail to allege any facts sufficient to establish that they satisfied the Brown Act s pre-filing requirement. The only allegation in the Amended Complaint and Petition relevant to this issue is at 60. That allegation is nothing more than a legal conclusion; not an allegation of ultimate fact sufficient to support Plaintiffs pleading burden. Additionally, it is included only in Plaintiffs Second Cause of Action for Declaratory Relief and omitted from Plaintiffs First Cause of Action for a Writ of Mandate and Injunctive Relief. However, Plaintiffs are given leave to adequately plead facts to allege compliance with the Brown Act s pre-filing requirement, and attach copies of the relevant documents upon which they rely, if any H v. Vu The court GRANTS Plaintiff Cao H. Duong s motion to set aside the dismissal entered by the court on 08/06/13, pursuant to Code Civ. Proc., 437, subd. (b). Such relief is appropriate and mandatory under Section 473(b). The 08/06/13 dismissal is hereby set aside. The court sets this matter for Case Management Conference to be set at the hearing. Plaintiff shall serve notice of this order Kattan v. Martin RULINGS (1) Demurrer to Complaint filed by Defendant State Farm: SUSTAINED, in its entirety, without leave to amend. Pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, the claim for Negligence fails, as the alleged breaches imply an obligation to volunteer and/or recommend additional coverage. Id. at 927; 22 and of FAC. Pursuant to Harford Fire Ins. Co. v. Spartan Realty International, Inc. (1987) 196 Cal.App.3d 1320, the claim for Estoppel fails as

164 Plaintiffs do not allege Mr. Martin misrepresented the terms of their coverage. Pursuant to American Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, the claim for Reformation fails as Plaintiffs do not allege either, that they requested insurance to cover a rental property, or that Mr. Martin intended to provide insurance with this coverage. Additionally, Plaintiffs' claim for Breach of Contract fails, as the Complaint concedes that Plaintiff s Insurance Policy did not provide coverage for the specific loss suffered ( 58(o) of FAC). Moreover, while Plaintiffs allege Defendant breached the terms of the agreement by failing to investigate Mr. Martin's negligence and/or the application of estoppel, there is no indication that this conduct was contractually required. Similarly, as no coverage was due, the claim for Breach of the Implied Covenant fails. Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4 th 1, 36. Further, the claim for Fraud fails for lack of specificity. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; ( 73 of FAC). Finally, leave to amend is denied as: (1) Plaintiffs failed to successfully amend, following a previous opportunity to clarify their claims; and (2) Plaintiffs failed to file Opposition to this Demurrer or demonstrate the manner in which amendment could change the legal effect of the Complaint. Pursuant to Goodman v. Kennedy (1976) 18 Cal.3d 335, the burden was on Plaintiffs to show the manner in which they may amend, and how the amendment will change the legal effect of the pleading. Id. at 349. As Plaintiffs failed to meet this burden, leave is denied. (2) Motion to Strike filed by Defendant State Farm: Based on the above ruling, the Motion to Strike is rendered MOOT. (3) Demurrer to Complaint filed by Defendant Martin: SUSTAINED, in its entirety, without leave to amend. Pursuant to Lippert v. Bailey (1966) 241 Cal.App.2d 376, Plaintiff s claims are barred against Defendant Martin, as the Complaint concedes that Martin acted at all times within the scope of his agency. Id. at 382; ( 3 and 12 of the FAC). Similarly, pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, the claim for Negligence fails, as all of the alleged breaches imply an obligation to volunteer and/or recommend additional coverage. Id. at 927; 22 and of FAC. Further, the claim for Fraud fails for lack of specificity. Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; ( 73 of the FAC). Lastly, leave to amend is denied as Plaintiffs failed to demonstrate any ability to amend. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. (4) Motion to Strike filed by Defendant Martin: Based on the above ruling, the Motion to Strike is rendered MOOT.

165 Steven Jenison Trustee of the Steven Jenison Living Trust dated Feb 28, 2007 v. Jenison The court DENIES Plaintiff Steven Jenison s motion, as Trustee of the Steven Jenison Living Trust dated Feb 28, 2007, for an order entering an interlocutory judgment. The motion fails for three separate and sufficient reasons. First, the interlocutory judgment that Plaintiff seeks is available only after trial. (Code Civ. Proc., ; see Miller & Starr, California Real Estate (3d ed. 2012) Right of Partition Procedure in Partition Action, 12:15; Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, ) No such trial has yet occurred and Plaintiff cites no authority that would permit the court to instead resolve disputed issues by way of a motion like the present one. Second, Plaintiff fails to proffer sufficient, admissible evidence to establish the parties respective interests in the subject property. Plaintiff s only evidence on this issue is a declaration from his attorney that lacks foundation, and Plaintiff s own declaration that he is a % owner of the property at issue. (See Karlin Dec., 4; Plaintiff Dec, 2.) No competent evidence is proffered as to the interests of the defendants named in Plaintiff s Complaint: Elizabeth Tatum (individually); Elizabeth J. Tatum and Richard W. Tatum (as Trustees of the Tatum Family Trust dated May 21, 2003); and Leslie Jenison (individually). Third, Plaintiff fails to proffer sufficient, admissible evidence to justify a partition at sale. In the absence of an agreement, a party seeking a sale of the property rather than division of it, must show that under the circumstances a sale and division of the proceeds would be more equitable than division of the property. (Code Civ. Proc., ) The burden of proof is on the party seeking to force a sale. (Richmond v. Dofflemyer, supra, 105 Cal.App.3d at p. 757.) No clear agreement here exists among all putative owners of the property. Evidence proffered by Plaintiff reflects that Leslie Jenison expressly rejected the notion of a judicial sale of the property. (Karlin Dec., Exh. F.) Plaintiff submits no other evidence on this issue, relying instead on the allegations of his unverified Complaint only. (See Motion, p. 7 [citing Complaint, 9].) The stipulation for appointment of a referee is moot in light of the court s denial of the motion for an interlocutory judgment ordering a sale by partition.

166 # Case Name Tentative Koudriavtsev v. Versailles on the Lake The Motion of Defendant/Judgment Creditor Domino Realty Management Company, Inc. to compel Plaintiff Alla Koudriavtseva to serve verified responses, without objection, to first sets of post-judgment special interrogatories and requests for production is DENIED. The request for sanctions is also DENIED. Once again proper notice is the problem. The court points out that the Proofs of Service attached to the discovery at issue show that it was served on Plaintiff s then-former counsel on 04/16/13. (Dominguez Decl., 2, 3, Exs. A & B.) However, on 03/05/13, Plaintiff had filed a substitution of attorney, becoming self-represented. No subsequent substitution of attorney was filed. Therefore, Domino failed to properly serve the discovery on Plaintiff, so Plaintiff never became obligated to respond to it. The fact of the 3/5/13 substitution of attorney was noted at the 9/26/13 hearing. However, although Domino then re-filed this Motion, Domino evidently did not re-propound the discovery at issue. The underlying defect in the Motion thus remains Balboa Capital Corporation v. Grandma s Inc Plaintiff s motion to strike Defendant s answer that the Defendant Corporation has no standing pro-persona is GRANTED but is stayed for 30 days from the date of this order to allow Defendant Corporation to engage legal counsel (Van Gundy v. Camelot Resorts, Inc (1982) 152 Cal. App 3 rd Supp. 29, 31.) Plaintiff to give Notice McFadden v. William Jordon Associates, Inc. the court GRANTS Plaintiff s unopposed motion to compel Mickey Payne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller (the Deponents ) to produce all documents in their custody, possession, and control that are responsive to the requests for production included in the deposition notices/subpoenas served by Plaintiff for the their depositions in this matter. Documents previously produced by the Deponents to Plaintiff need not be produced again. The court also awards monetary sanctions against counsel for Defendant William Jordan Associates, Inc. in the requested amount of $2, It is further ordered that the Deponents are to serve the abovereferenced documents on Plaintiff, and Defendant s counsel is to pay the monetary sanctions called for in this order, within 10 days after service of notice of this order. Plaintiff is to serve notice of this order. On counsel for the Defendant accepting representation of Defendant s employees there is a corresponding obligation to provide to plaintiff s attorney all relevant documents relating to those employees. This motion was necessary to force defense counsel to comply with his discovery obligations as to these

167 BRK Brands, Inc. v. Paul Hastings Janofsky & Walker potential witnesses. It is obvious to the court that defense counsel has chosen despite this obligation to not and with no good cause turn over the documents pursuant to the production of documents notice. Moreover, this failure is without cause as evidenced from the lack of opposition to this motion to compel. (see also Ex 1 to Supp Decl Weinman ) Consequently, monetary sanctions are the appropriate first step in reminding defense counsel of his statutory discovery obligations to plaintiff s attorney and to the court. Plaintiffs Motion to Lift Stay on Proceedings is GRANTED. Plaintiff to give Notice. The issue of arbitrability of the claim as to Mr. Stuhlbarg (which was the sole claim previously identified as potentially subject to arbitration under the SPA) has been determined by the Arbitrator to be non-arbitrable. (Daichman Decl., Ex. A.) Although there continues to be substantial factual overlap between the two proceedings, there are no longer any claims in this action that are potentially subject to arbitration under the terms of the SPA. Nor have Defendants identified any issue of fact or law which is to be decided in the arbitral forum that must also be decided in this action, so as to create a risk of inconsistent rulings on any pending issues. It therefore appears appropriate to lift the stay now that the Arbitrator has decided the arbitrability issue. The Requests for Judicial Notice filed by Plaintiffs and Defendants are both GRANTED. To the extent that both seek judicial notice of materials from the JAMS arbitration, neither side has offered any authority to suggest that judicial notice is proper for those documents. However, as both have been submitted with supporting declarations and there is evidently no dispute as to the authenticity of either document, they have been considered here Harry v. Estes Motion for Relief from Waiver of Jury Trial GRANTED. The motion is granted pursuant to Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, as there has been no prejudice to Defendant or the Court. The trial scheduled for May 5, 2014 will proceed as a jury trial OC Restaurant Group, LLC v. Ayaz THE DEMURRER Demurrer to the 5th c/a for fraudulent inducement is SUSTAINED with 20 days leave to amend. 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. (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, 676, p. 778; see also Civ.Code, Promissory fraud is a subspecies of the action for fraud and deceit. A promise to do something

168 necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal.2d 671, 676, 76 P.2d 503. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Chelini v. Nieri (1948) 32 Cal.2d 480, 487. Here, Ayaz alleges that in order to induce Ayaz to work full time on getting Tilted Kilt franchise up and running and have access to Ayaz connections, G. Smith promised Ayaz (a) 49% interest in the Tilted Kilt (b) that G. Smith and Ayaz would be business partners in future Tilted Kilt opportunities (c) that Ayaz would be the Director of Operations of the Tilted Kilt Franchise and (d) that Ayaz would receive monthly distributions of a minimum of $10,000 per month. FAXC 46c, f, g, h. However these allegations fall short as to the pleading requirements stated above. For example, 47 pleads: 47. G. Smith knew the representations to Ayaz in Paragraph 46 were false at the time he made them because G. Smith intended to and did maintain absolute control over the operations and money of the business at all times, always intended to push Ayaz out of the business and/or to buy Ayaz out for less than his 49% stake was worth, intended to usurp additional franchise opportunities for himself, intended to have his daughter Kelly Smith work as the Director of Operations, never intended to make any monthly distributions to Ayaz and never intended to honor the 49% stake agreed-upon with Ayaz. Indeed, Ayaz is informed and believes and on that basis alleges that G. Smith had previously engaged in a similar plan to oust a business partner who he had brought in to provide services. What is missing are the specific facts supporting the contentions that G. Smith had no intention of performing at the time the promise was made. What is necessary as opposed to what has been pled which is changing the position over the course of the relationship. No facts are offered to support a specific lack of intention. Motion to Strike At this point evidenced from the courts below ruling on the Motion to Strike this case is a breach of contract: The Court rules on the motion to strike various portions of the FAXC as follows: Motion is DENIED as to: Page 3, lines 10-11: "or buy him out on the cheap Subparagraph (a) of 15 in its entirety Portions of Subparagraph (b) of 15 Subparagraph (c) of 15 in its entirety Subparagraph (d) of 15 in its entirety Page 9: Line 10 Motion is GRANTED as to:

169 Subparagraph (e) of 15 in its entirety. These facts are irrelevant. Ayaz admits that none of these facts form the basis of his claims. Therefore, other than to show he was being intimidated in a roundabout way, there is no need for these facts. Page 7, lines 8-12: The language in the Notice of motion does not match up to the language in the FAXC. Ayaz prayer for relief for punitive damages, including 38 and 52 in their entirety. There are insufficient facts plead, at this time to support punitive damages in connection w/ the Breach of Fiduciary Duty or Fraud causes of action. 20 days leave to amend. MP to give notice Frye v Winkle The Court having already granting reconsideration of its ruling, now rules as follows: Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 3 rd cause of action for Wrongful Transfer of Property by Concealment and Undue Influence. Probate Code 850 does not allow a remedy in a civil action. The Demurrer as to the 13 th, 15 th, and 17 th causes of action is OTHERWISE SUSTAINED WITH 20 DAYS LEAVE TO AMEND. As to the 13 th cause of action, Plaintiffs should attempt to plead causation. As to the 15 th c/a, facts should be pled either that Linda Frye is the administrator of the estate or that all beneficiaries of the estate have verified the complaint. Plaintiffs should also plead a legal description of the property as required by CCP (a). Finally, as to the 17 th cause of action, to the extent this c/a relies on the absconding of Earl s property, demurrer is sustained with leave to amend as fraud and conversion have not been adequately pled Force v. Francis The court will grant the Motion on condition that counsel appear and confirm his client s current address.

170 # Case Name Tentative Koudriavtsev v. Versailles on the Lake The Motion of Defendant/Judgment Creditor Domino Realty Management Company, Inc. to compel Plaintiff Alla Koudriavtseva to serve verified responses, without objection, to first sets of post-judgment special interrogatories and requests for production is DENIED. The request for sanctions is also DENIED. Once again proper notice is the problem. The court points out that the Proofs of Service attached to the discovery at issue show that it was served on Plaintiff s then-former counsel on 04/16/13. (Dominguez Decl., 2, 3, Exs. A & B.) However, on 03/05/13, Plaintiff had filed a substitution of attorney, becoming self-represented. No subsequent substitution of attorney was filed. Therefore, Domino failed to properly serve the discovery on Plaintiff, so Plaintiff never became obligated to respond to it. The fact of the 3/5/13 substitution of attorney was noted at the 9/26/13 hearing. However, although Domino then re-filed this Motion, Domino evidently did not re-propound the discovery at issue. The underlying defect in the Motion thus remains Balboa Capital Corporation v. Grandma s Inc Plaintiff s motion to strike Defendant s answer that the Defendant Corporation has no standing pro-persona is GRANTED but is stayed for 30 days from the date of this order to allow Defendant Corporation to engage legal counsel (Van Gundy v. Camelot Resorts, Inc (1982) 152 Cal. App 3 rd Supp. 29, 31.) Plaintiff to give Notice McFadden v. William Jordon Associates, Inc. the court GRANTS Plaintiff s unopposed motion to compel Mickey Payne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller (the Deponents ) to produce all documents in their custody, possession, and control that are responsive to the requests for production included in the deposition notices/subpoenas served by Plaintiff for the their depositions in this matter. Documents previously produced by the Deponents to Plaintiff need not be produced again. The court also awards monetary sanctions against counsel for Defendant William Jordan Associates, Inc. in the requested amount of $2, It is further ordered that the Deponents are to serve the abovereferenced documents on Plaintiff, and Defendant s counsel is to pay the monetary sanctions called for in this order, within 10 days after service of notice of this order. Plaintiff is to serve notice of this order. On counsel for the Defendant accepting representation of Defendant s employees there is a corresponding obligation to provide to plaintiff s attorney all relevant documents relating to those employees. This motion was necessary to force defense counsel to comply with his discovery obligations as to these

171 BRK Brands, Inc. v. Paul Hastings Janofsky & Walker potential witnesses. It is obvious to the court that defense counsel has chosen despite this obligation to not and with no good cause turn over the documents pursuant to the production of documents notice. Moreover, this failure is without cause as evidenced from the lack of opposition to this motion to compel. (see also Ex 1 to Supp Decl Weinman ) Consequently, monetary sanctions are the appropriate first step in reminding defense counsel of his statutory discovery obligations to plaintiff s attorney and to the court. Plaintiffs Motion to Lift Stay on Proceedings is GRANTED. Plaintiff to give Notice. The issue of arbitrability of the claim as to Mr. Stuhlbarg (which was the sole claim previously identified as potentially subject to arbitration under the SPA) has been determined by the Arbitrator to be non-arbitrable. (Daichman Decl., Ex. A.) Although there continues to be substantial factual overlap between the two proceedings, there are no longer any claims in this action that are potentially subject to arbitration under the terms of the SPA. Nor have Defendants identified any issue of fact or law which is to be decided in the arbitral forum that must also be decided in this action, so as to create a risk of inconsistent rulings on any pending issues. It therefore appears appropriate to lift the stay now that the Arbitrator has decided the arbitrability issue. The Requests for Judicial Notice filed by Plaintiffs and Defendants are both GRANTED. To the extent that both seek judicial notice of materials from the JAMS arbitration, neither side has offered any authority to suggest that judicial notice is proper for those documents. However, as both have been submitted with supporting declarations and there is evidently no dispute as to the authenticity of either document, they have been considered here Harry v. Estes Motion for Relief from Waiver of Jury Trial GRANTED. The motion is granted pursuant to Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, as there has been no prejudice to Defendant or the Court. The trial scheduled for May 5, 2014 will proceed as a jury trial OC Restaurant Group, LLC v. Ayaz THE DEMURRER Demurrer to the 5th c/a for fraudulent inducement is SUSTAINED with 20 days leave to amend. 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. (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, 676, p. 778; see also Civ.Code, Promissory fraud is a subspecies of the action for fraud and deceit. A promise to do something

172 necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal.2d 671, 676, 76 P.2d 503. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Chelini v. Nieri (1948) 32 Cal.2d 480, 487. Here, Ayaz alleges that in order to induce Ayaz to work full time on getting Tilted Kilt franchise up and running and have access to Ayaz connections, G. Smith promised Ayaz (a) 49% interest in the Tilted Kilt (b) that G. Smith and Ayaz would be business partners in future Tilted Kilt opportunities (c) that Ayaz would be the Director of Operations of the Tilted Kilt Franchise and (d) that Ayaz would receive monthly distributions of a minimum of $10,000 per month. FAXC 46c, f, g, h. However these allegations fall short as to the pleading requirements stated above. For example, 47 pleads: 47. G. Smith knew the representations to Ayaz in Paragraph 46 were false at the time he made them because G. Smith intended to and did maintain absolute control over the operations and money of the business at all times, always intended to push Ayaz out of the business and/or to buy Ayaz out for less than his 49% stake was worth, intended to usurp additional franchise opportunities for himself, intended to have his daughter Kelly Smith work as the Director of Operations, never intended to make any monthly distributions to Ayaz and never intended to honor the 49% stake agreed-upon with Ayaz. Indeed, Ayaz is informed and believes and on that basis alleges that G. Smith had previously engaged in a similar plan to oust a business partner who he had brought in to provide services. What is missing are the specific facts supporting the contentions that G. Smith had no intention of performing at the time the promise was made. What is necessary as opposed to what has been pled which is changing the position over the course of the relationship. No facts are offered to support a specific lack of intention. Motion to Strike At this point evidenced from the courts below ruling on the Motion to Strike this case is a breach of contract: The Court rules on the motion to strike various portions of the FAXC as follows: Motion is DENIED as to: Page 3, lines 10-11: "or buy him out on the cheap Subparagraph (a) of 15 in its entirety Portions of Subparagraph (b) of 15 Subparagraph (c) of 15 in its entirety Subparagraph (d) of 15 in its entirety Page 9: Line 10 Motion is GRANTED as to:

173 Subparagraph (e) of 15 in its entirety. These facts are irrelevant. Ayaz admits that none of these facts form the basis of his claims. Therefore, other than to show he was being intimidated in a roundabout way, there is no need for these facts. Page 7, lines 8-12: The language in the Notice of motion does not match up to the language in the FAXC. Ayaz prayer for relief for punitive damages, including 38 and 52 in their entirety. There are insufficient facts plead, at this time to support punitive damages in connection w/ the Breach of Fiduciary Duty or Fraud causes of action. 20 days leave to amend. MP to give notice Frye v Winkle The Court having already granting reconsideration of its ruling, now rules as follows: Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 3 rd cause of action for Wrongful Transfer of Property by Concealment and Undue Influence. Probate Code 850 does not allow a remedy in a civil action. The Demurrer as to the 13 th, 15 th, and 17 th causes of action is OTHERWISE SUSTAINED WITH 20 DAYS LEAVE TO AMEND. As to the 13 th cause of action, Plaintiffs should attempt to plead causation. As to the 15 th c/a, facts should be pled either that Linda Frye is the administrator of the estate or that all beneficiaries of the estate have verified the complaint. Plaintiffs should also plead a legal description of the property as required by CCP (a). Finally, as to the 17 th cause of action, to the extent this c/a relies on the absconding of Earl s property, demurrer is sustained with leave to amend as fraud and conversion have not been adequately pled Force v. Francis The court will grant the Motion on condition that counsel appear and confirm his client s current address.