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1.

07CC02977

BALDWIN VS INTERNATIONAL STUDENT VOLUNTEERS

DEMURRER OF DEFENDANT TO THE SECOND AMENDED COMPLAINT is OVERRULED.  Plaintiff’s request for judicial notice of the Court’s ruling of 6/19/07 is granted. 

The decedent, whether she was swimming or not, was in a foreign country with a native guide.  She did not assume the risk that she would drown as a result of dangerous riptides, which she could not see.  This risk exceeds the risks inherent in swimming, such as leg cramps or exhaustion – not a risk that is known to the guide, but is undisclosed.  It is highly unlikely that any student would have entered the water, had he or she been advised of the seriousness of the danger.

As plaintiff correctly observes, defendant has previously demurrer on the identical grounds raised here.  “No demurrer on grounds previously overruled:  Where a prior demurrer was sustained as to some causes of action but overruled as to others, and plaintiff then amends the complaint, defendants may not demur again on the same grounds to those portions of the amended pleading to which an earlier demurrer was overruled.”  Bennett v. Suncloud (1997) 56 Cal.App.4^th 91, 96 fnl.

Here, plaintiffs added additional individual defendants in the second amended complaint, but the underlying facts remained unchanged.  Moreover, the cases cited by defendant do not support its theories.  By way of example, defendant relies upon Rostai v. Neste(2006) 139 Cal.App.4^th 326.  In that case, the plaintiff suffered a heart attack while exercising at a gym and it was alleged that the gym should have investigated his cardiac risk factors.  This matter is wholly distinguishable on many grounds.  The decedent in Rostai died as a result of a condition personal to him, not because the environment was dangerous and the gym could not have known of the hidden danger.  Here, the danger was evident to the native individuals, who knew or should have known the meaning of the red flags, as well as the history of drowning deaths in the area selected for swimming.  Accordingly, for the second and last time, defendant’s demurrer is overruled in its entirety.

2.

06CC10640

BARNETT VS KEMP

OFF CALENDAR PER MOVING PARTY.

3.

07CC00588

CUNNINGHAM VS MARION SCHUSTER TRUST

PLAINTIFF AND DEFENDANT’S JOINT MOTION TO CONTINUE TRIAL is GRANTED trial is continued to March 2, 2009.  There will be no further continuances for any reason.  The trial has been continued twice and the case is nearly 600 days old.  The parties have stipulated to a 6-7 month continuance, which should not be necessary if they proceed diligently.  Nevertheless, it appears that they are sincere in their efforts to settle the matter and that good cause exists for a continuance.  Settlement has been delayed, but may ultimately be facilitated by the retention of an expert, as suggested by Justice Wallin.  Additionally, the issues here are viewed as complex and involve many plaintiffs.  Accordingly, the trial will be continued with the understanding that no further continuances will be granted for any reason.

4.

SC096767

CLINTON VS BEVERLY HILLS SUPERIOR COURT

Demurrer of Defendants to Plaintiff’s Complaint is SUSTAINED without leave to amend as to both the Los Angeles Superior Court, erroneously served as the Beverly Hills Superior Court, and Kay Raphael.  Plaintiff has not submitted any facts that could establish that Raphael acted as a private citizen as she is a court clerk.  Since plaintiff lacks the facts to establish Raphael acted as a private citizen, the demurrer to the entire complaint is sustained without leave to amend.

The demurrer is based on documents not included in this court file, as it references statements that do not appear in the sparse complaint.

Plaintiff cannot overcome the protections of judicial and quasi-judicial immunity.

“The concept of judicial immunity is long-standing and absolute, with its roots in English common law.  It bars civil actions against judges for acts performed in the exercise of their judicial functions and it applies to all judicial determinations, including those rendered in excess of the judge’s jurisdiction, no matter how erroneous or even malicious or corrupt they may be.

[Citations]  The judge is immune unless “he has acted in the clear absence of all jurisdiction. [Citations.]”  Beyond doubt, the doctrine of “civil immunity of the judiciary in the performance of judicial functions is deeply rooted in California law.””  (Howard vs. Drapkin (1990) 222 Cal. App. 3d 843, 852.)

Here, immunity is applicable because Plaintiff alleges that his prison sentence was miscalculated, which plainly involves a judicial function.  Defendant states that Kay Raphael is the court clerk.  Plaintiff has not presented any evidence to establish that Raphael acted as a private citizen, to whom judicial immunity would not extend. Because of the non-existence of any such facts, the demurrer is sustained without leave as to Raphael and the Los Angeles Superior Court. 

5.

07CC11213

FIRST FRANKLIN FINANCIAL CORP VS STATEWIDE FINANCIAL FUNDING

Plaintiff’s Motion for Terminating and Monetary Sanctions is GRANTED for defendant’s non-compliance with the court’s order compelling discovery.  Laguna Auto Body vs. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481.  Also, GRANT plaintiff’s request for additional monetary sanctions in the amount of $872.50.  C.C.P. 2030.300(e) and 2031.310(e).  Moving party to give notice.

Since plaintiff’s motion for terminating sanctions is granted, a default prove-up hearing will be set on September 29, 2008 at 9:00 a.m. in C-21.

Plaintiff’s Request for Judicial Notice:  GRANT plaintiff’s request for judicial notice of Exhibits 1, 2, 3 and 4.  As to the pleadings for the prior motions to compel, which are Exhibit 1, 2, and 3 judicial notice is limited to the filing of these documents in the court’s file and not as to the claims and contentions raised therein.  Day vs. Sharp (1975) 50 Cal. App 3d 904.  Exhibit 4, the Court’s Minute Order of 5-13-08 is granted.

On 3-12-08, plaintiff First Franklin filed motions to compel further responses to its form interrogatories, request for admissions and request for production of documents.  On 5-13-08, the court ordered defendant Statewide Financial to provide further responses.  For over three months defendant has not filed any responses to this discovery as ordered.  On 7-24-08, plaintiff First Franklin filed a renewed motion for terminating sanctions for defendant’s failure to comply with the court’s order compelling further responses and awarding sanctions to plaintiff.

In Ruvalcaba vs. Government Employees Ins. Co. (1990) 222 Cal. App. 3d 1579, the court held that before terminating sanctions for failure to comply with discovery can issue, there must be a court order compelling a party to comply with discovery.  Id., at 1580 to 1581.  The court’s order of 5-13-08 satisfies this requirement. 

The abuse of discretion standard applies to a court’s order granting terminating sanctions.  Laguna Auto Body vs. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491.  In Collisson & Kaplan vs. Hartunian  (1994) the trial court imposed terminating sanctions after defendants failed to comply with a single order compelling discovery.  Id., at 1615.  In Collisson, the court’s order was to compel defendants to provide further responses to interrogatories and requests for admissions, as well as to produce further documents.  Id., at 1613 to 1615.  When defendants failed to provide the supplemental discovery as ordered, the court ordered the answer by defendants stricken.  Id., at 1615.  The Court of Appeal affirmed, and noted that in Collisson, obtaining discovery from defendants was like pulling teeth.  Id., at 1616.  In fact, the Court of Appeal found that the appeal by defendants was frivolous, and further sanctioned the defendant and their counsel.  Id., at 1621.

In this case, defendant Statewide Financial has failed to provide further responses to plaintiff First Franklin’s initial discovery as ordered.  Defendant First Franklin is a corporate entity and has not retained new counsel to represent it since its initial counsel’s motion to withdraw as granted back in March 2008.  Plaintiff First Franklin has now filed this motion for terminating sanctions, and defendant Statewide Financial has filed no opposition attempting to explain its failure to comply with this court’s order of 5-13-08.  Defendant’s failure to submit to an authorized method of discovery, and its failure to comply with this court’s order, clearly violated California C.C.P. Sections 2023.010(d) and (g).

Based on this, plaintiff First Franklin’s motion for terminating sanctions is GRANTED, and the defendant Statewide Financial’s default is entered.

6.

08-100913

GREENLEAF VS VIRSYS INC

CONTINUED TO 9/23/08.

7.

08-109080

HATCHER VS ROCKER

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION is DENIED in its entirety. 

Alleged service defect

Rocker’s counsel contends that service of this motion was never effected and that he learned of the hearing only by review of the court files after he was retained on 8/8.  CRC 3.1150 requires personal service of a preliminary injunction motion where a responding party has not yet appeared.  Nevertheless, Rocker has responded on the merits and thus has waived any defect in service.

CCP 872.130 does not support issuance of an injunction in this circumstances

Plaintiffs cite to CCP 872.130 for the Court’s authority to issue an injunction in a partition action.  The statute provides:

“In the conduct of the action, the court may issue temporary restraining orders and injunctions, with or without bond, for the purpose of:

     (a)  Preventing waste.

     (b)  Protecting the property or title thereto.

     (c)  Restraining unlawful interference with a partition of the property ordered by the court.”

Plaintiffs argue that they will undoubtedly prevail on the partition claim because a tenant in common has an absolute right to partition.  Here, however, there is a dispute as to whether the parties intend that the property would be sold to a third party or would be conveyed to Rocker.  Under such circumstances, the right of partition is not straightforward.

As stated by the court in Harrison v. Domergue (1969) 274 Cal.App.2d 19, “The right of a co-tenant to have the property in which he owns an interest partitioned is ordinarily absolute.  However, that right may be waived or altered by agreement.”  In Harrison, the court found that where the parties had agreed that the co-owner would have first right of refusal as to purchase of the property, this agreement acted to waive the right to partition.  Although that court ultimately found the agreement unenforceable against successor owners, in this matter it is the original parties who dispute the questions of ownership and sale.  Because Rocker contends the agreement provided that she would be granted sole title, it cannot presently be determined whether the right to partition has been impaired or waived. 

Moreover, plaintiffs do no more than superficially address the purposes of CCP 872.130, stating that Rocker is disposing of furniture and that the market is declining, characterizing these occurrences as “waste” and the cause of irreparable harm.  To reach this conclusion, plaintiffs creatively argue that sale of the furniture results in a less appealing property, which then leads to a lower value for the residence.  They cite no case that might support this theory and allege no direct waste to the real property itself.

“The essential features marking an injury as irreparable are: 1.  That the injury is an act which is a serious change of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoyed;  2.  That the property must have some peculiar quality or use such that its pecuniary value, as estimated by a jury, will not fairly recompense the owner for the loss of it.”  Helms v. State (1942) 53 Cal.App.2d 417, 426.)  Here, should they prevail, plaintiffs can be fully and fairly compensated by monetary damages, as the injury alleged is entirely pecuniary, i.e. loss of market value.

Plaintiffs’ final contention is that Rocker is violating CCP 872.130(c) because she is interfering with sale of the property.  The referenced code section states, however, that the court may issue an injunction where the party is interfering with partition ordered by the court.  There is presently no order for partition in place.  Moreover, the proposed injunction would require Rocker to comply with the verbal contract’s terms, as these terms are set forth by plaintiffs.  “Specific performance of a contract will not be compelled when an adequate remedy exists at law, and if monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted.”  Thayer Playmouth v. Chrysler (1967) 255 Cal.App.2d 300.  Accordingly, because there is no evidence that monetary damages would be extremely difficult to ascertain, plaintiffs are not entitled to the injunctive relief demanded.

8.

08-106466

ITO VS TENET HEALTHCARE CORP

CONTINUED TO 10/07/08.

9.

07CC08375

MCCLAIN VS SADDLEBACK VALLEY UNITED SCHOOL

OFF CALENDAR PER MOVING PARTY.

10.

07CC10778

RAM VS CENTENNIAL INS CO

MOTION OF DEFENDANTS CENTENNIAL INS. CO AND ATLANTIC MUTUAL INS. CO’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION is GRANTED.

Defendant has met its burden under CCP 437c(p)(2) to establish that there was no coverage under the CGL policy or the umbrella policy issued to its insured Linographics for the claims alleged in the underlying action.  (Undisputed facts 1, 2, 13-17, 25-29, 31, 34-45, 50-58, 175-177, supporting evidence therein, and as repeated for each cause of action.)  Accordingly, plaintiff has no grounds upon which he can assert a claim against either Centennial or Atlantic.  The burden then shifts to plaintiff to demonstrate the potential for coverage in the underlying action.  Plaintiff has failed to meet this burden.

Defendants’ request for judicial notice is granted.

Whether Centennial had a duty to defend is not determined by the content of the stipulated judgment or whether Centennial received a copy of the first amended complaint in the underlying action, but by whether the facts alleged established a potential for coverage.

Centennial alleges that the stipulated judgment establishes that it had no duty to defend because Linographics continued to expressly deny any wrongdoing, because the judgment did not provide relief for property damage, for bodily injury or for an occurrence.  Centennial also argues that Linographics demurrer to plaintiff’s complaint was sustained without leave to amend as to a negligence claim, but that the Court granted leave to amend in order to assert new claims.  Centennial acknowledges receiving the original complaint and denying coverage, but alleges that it did not receive the amended complaint.

Insurance Code 11580(b)(2) establishes standing for a judgment creditor to assert a direct claim against the judgment debtor’s insurer.  The code section states: “A provision that whenever judgment is secured against the insured . . . in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.”   Thus, plaintiff must establish both that the underlying action was based on bodily injury, death or property damage and that the policy terms and limitations covered the acts alleged in that action.  Plaintiff cannot meet this burden.

There is a duty to defend where the facts alleged in the complaint demonstrate a potential for coverage

The insurer’s duty to defend is broader than that to indemnity.  Where there is a potential for coverage the insurer is obligated to defend.  Montrose Chemical v. Superior Cr. (1993) 6Cal.4^th 287, 295.  “The rule is settled that an insurer is under a duty to defend a claim whenever the allegations of a complaint would support a recovery upon a risk covered by the policy.”  Hogan v. Midland (1970) 3 Cal.3d 553, 565.

“The determination of whether the duty to defend arises is made by comparing the terms of the policy with the allegations of the complaint and any known extrinsic facts, and any doubt as to whether the facts create a duty to defend is resolved in favor of the insured.”  Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal. 4^th 1076, 1081.

Here, Centennial contends in its moving papers that the complaint and amended complaint are premised upon the same facts.  Because it is the facts alleged in the complaint, not the caption attached to a cause of action that are considered in a coverage analysis, this argument, standing alone, fails.  The amended (underlying) complaint describes plaintiff’s damages as “anxiety, worry, mental and emotional distress and other incidental damages and out-of-pocket expenses.” (Paragraph 34)  Paragraphs 41 and 46 list only economic damages and no property damage or bodily injury is alleged.

The mental injury alleged by plaintiff did not result from an occurrence covered under the Centennial Policy

To establish the duty to defend and/or indemnify, a plaintiff must demonstrate that his emotional distress resulted from a covered event – bodily injury, property damage or personal and advertising injury.

Centennial cites to cases holding that, in the absence of physical injury, emotional injuries are not encompassed by an insuring clause for bodily injury.  The cases do so hold.  Each case reviewed interprets an insuring provision containing language such as “bodily injury” or “sickness”.  In Aim Ins. V. Culcasi (1991) 229 Cal.App.3d 209, 220, that court stated:  Given the clear and ordinary meaning of the word “bodily,” we find the term “bodily injury” unambiguous.  It means physical injury and its consequences.  It does not include emotional distress in the absence of physical injury.”  Here, the primary policy defines “bodily injury” as “sickness or disease sustained by a person, including mental anguish or death resulting from any of these at any time.”  Thus, had plaintiff’s emotional distress resulted from a bodily injury, it could have been covered by the primary policy.

Plaintiff, nevertheless, erroneously interprets this provision to mean that mental anguish flowing from a non-covered event is within the bodily injury definition – despite the first amended complaint’s unequivocal assertions that plaintiff’s losses were economic (tuition, books, software supplies).  Plaintiff premises his argument on the theory that economic losses constitute property damage because he had a proprietary right to his disability benefits, and to monies expended on the training program.  As explained in Waller v. Truck Ins. Exchange (19950 40 Cal.App 4^th 1699, “The focus of coverage for property damage is … the property itself, and does not include intangible economic losses…”  Montrose v. Superior Ct. (1993) 6 Cal.4^th 287, 303 [recognizing that “a suit seeking recovery for injuries to intangible economic interests is not a suit ‘of the nature and kind’ covered by a CGL policy”]; Chatton v. National Union (1992) 10 Cal.App. 4^th 846; [ruling there was no coverage for emotional distress damages resulting from investment losses caused by negligent misrepresentation])  Accordingly, the first amended complaint does not state a claim for property damage.

Lastly, the umbrella policy, which would provide coverage when the limits of the CGL policy were exhausted, defines “bodily injury’ as follows:  “sickness, disease, shock, fright, mental injury or disability sustained by a person” and includes death resulting from any of these.  Even assuming, however, that coverage under the broader umbrella policy had been triggered, both policies expressly excluded coverage for professional liability, which is defined as the “rendering or failure to render professional services by the insured or any empooyee of the insured.”  (Defendant’s undisputed facts #54 and #55; Exhibit F, p. 73 and p. 178.)

A claim for punitive damages is not assignable.

This action is brought by plaintiff, as the insured’s assignee.  An assignee cannot assert a claim for punitive damages because this right is personal in nature.  Essex v. Five Star (2006) 38 Cal.4^th 1252, 1261.

Atlantic is without liability

Even had plaintiff demonstrated the potential for coverage, Atlantic did not issue the Linographics policy and thus had no duty to defend that entity.  (Defendant’s undisputed facts #1, #56)

Request for judicial notice

Defendants’ request judicial notice of pleadings in this case, and in the underlying action.  Although not cited by defendant, Evidence Code 452(d) permits the court to take notice of such records.

11.

07CC10193

SCHWEGMAN VS IRVINE REGIONAL HOSPITAL

OFF CALENDAR.

12.

07CC11525

CAPITAL DIRECT FINANCIAL INS VS STRINGHAM

1. Demurrer to Cross-Complaint of Richard Stringham

1. OVERRULE demurrer by cross-defendant Dixon in his individual capacity since claims can be stated against corporate officers who actively participate, authorize or direct that wrongful acts be performed.  PMC, Inc. vs. Kadisha (2000) 78 Cal. App. 4^th 1368.

As to demurrer by cross-defendants CDFI and Dixon, this demurrer is OVERRULED in part and SUSTAINED in part. 

OVERRULED as to cross-complaint’s first cause of action for breach of contract, second cause of action for breach of fiduciary duty, fifth cause of action for conversion, seventh cause of action for misappropriation of likeness, and ninth cause of action for indemnity.  SUSTAINED, with 20 days leave to amend, as to cross-complainant’s third cause of action for misrepresentation, fraud and deceit, and sixth cause of action for invasion of privacy.  The fraud cause of action is not pled with sufficient specificity and particularity, and the claimed fraudulent representations pre-date the existence of CDFI, thereby rendering this claim as to CDFI uncertain.  Tarmann vs. State Farm Mutual Auto Ins. Co. (1991) 2 Cal. App. 4^th 153.  As to the invasion of privacy cause of action sufficient facts as to intrusion highly offensive to a reasonable person have not been pled.  Sanders vs. American Broadcasting Companies, Inc. (1999) 20 Cal. 4^th 907.

2.  Motion to Strike Portions of Cross-Complaint of Richard Stringham

2)  Cross-defendants’ motion to strike is GRANTED in part, DENIED in part, and the balance is MOOT.  GRANTED as to cross-complainant’s claim for disgorgement damages. In this case, cross-complainants’ claim has not been certified as a class action.  Thus a claim for disgorgement damages is improper.  Kraus vs. Trinity Management Services, Inc.  (2000) 23 Cal 4^th 116 and Korea Supply Co. vs. Lockhead Martin Corp. (2003) 29 Cal. 4^th 1134. Therefore the following portions of Stringham’s cross-complaint is stricken: Paragraph 71, p. 16. line 22, and Prayer, p. 19, lines 1 to 2.  DENIED as to cross-complainant’s punitive damages claims, and the prayers, associated with his second cause of action for breach of fiduciary duty, fifth cause of action for conversion, and seventh cause of action for misappropriation of the name.  The balance of cross-defendants’ motion to strike is MOOT because cross-defendants’ demurrer to cross-complainants’ third cause of action for fraud and sixth cause of action for invasion of privacy is SUSTAINED.

3.  Plaintiffs/Cross-Defendant’s Special Motion to Strike cross-complaint of Richard Stringham under Anti-Slapp statute- C.C.P. Section 425.16

3)  DENY cross-defendants’ special motion to strike.  Cross-defendants failed to carry their initial burden of demonstrating protected activity under C.C.P. 425.16 in reference to the indemnity claim.  Brill Media Co., LLC vs. TCW Group, Inc. (2005) 132 Cal. App. 4^th 324, 330.  Even assuming protected activity is found, cross-complainant has presented a legally sufficient claim for indemnity and supporting evidence to support his claim under Corporation Code 317 and Labor Code 2802.  Premier Med. Mgt. Systems, Inc. vs. California Ins. Guar. Ass’n (2006) 136 Cal. App. 4^th 464, 472 and Wilshire-Doheny Assoc., Ltd. vs. Shapiro (2000) 83 Cal. App. 4^th 1380, 1390.

4.  Special Motion to Strike the First Amended Cross-Complaint of George Hannawi, under Anti-Slapp Statute per C.C.P. Section 425.16

4) GRANT cross-defendants’ special motion to strike as to Hannawi’s fifth cause of action for defamation because cross-defendants carried their initial burden of establishing protected activity under Section 425.16, and cross-complainant Hannawi failed to carry his burden of establishing a prima facie case for defamation based on admissible evidence.  C.C.P. 425.16, and Roberts vs. Los Angeles County Bar Ass’n (2003) 105 Cal. App. 4^th 604.  GRANT cross-defendants’ request for attorney’s fees and costs, pursuant to C.C.P. 425.16(c), in the amount of $4,050.00.

Cross-Defendants’ Request for Judicial Notice:  GRANT cross-defendant’s request for judicial notice of the pleadings attached as Exhibit A, B, and C but limited to the existence of these pleadings and not the claims and contentions set forth therein.  Evidence Code 452(d), and Day vs. Sharp (1975) 50 Cal. App. 3d 904.

5.  Special Motion to Strike cross-complaint of Margaret Gable under anti-SLAPP statute- C.C.P. Section 425.16

5)  GRANT cross-defendants’ special motion to strike as to Gable’s fourth cause of action for defamation because cross-defendants carried their initial burden of establishing protected activity under Section 425.16, and cross-complainant Gable failed to carry her burden of establishing a prima facie case for defamation based on admissible evidence.  C.C.P. 425.16, and Roberts vs. Los Angeles County Bar Ass’n  (2003) 105 Cal. App. 4^th 604.  GRANT cross-defendants’ request for attorney’s fees and costs, pursuant to C.C.P. 425.16 (c), in the amount of $4,050.00.

Cross-Defendants’ Request for Judicial Notice:  GRANT cross-defendant’s request for judicial notice of the pleadings attached as Exhibits A, B, and C but limited to the existence of these pleadings and not the claims and contentions set forth therein.  Evidence Code 452(d), and Day vs. Sharp (1975) 50 Cal. App. 3d 904.