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