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#07CC07694

Buy.Com VS Connect 3D

Pl. Buy.com, Inc, Motion for Summary Adjudication on the 1^st and 2^nd C/As – Grant.

Pl. has established all of the elements of its 1^st C/A for Breach of contract, and its 2^nd C/A for anticipatory breach of contract.  The following evidence supports:  (a) the existence of the Rebate Agreement which required Def. Connect 3D to pay Buy.com for all valid rebate redemption requests that are rejected or otherwise unreasonably delayed in processing [Pl. Separate Statement, UF #1]; (b) rebated products were sold [id., #23]; (c) Buy.com received complaints from consumers regarding rebates that were not honored by Def. Connect 3D [id., #20];  (d) Buy.com sent two invoices totaling $32,950 to Connect 3D in May and June, 2007, for rebates that were wrongfully rejected or extensively delayed [id., #26, 30]; (e) Connect 3D did not challenge the validity of those invoices [id., #33]; (f) Connect 3D failed to pay either invoice [id., #36]; (g) Connect 3D refused to honor its obligation for the rebates [id., #22, 34, 35]; (h) a class action was filed against Buy.com on behalf of consumers who did not receive their rebates [id., #36]; (i) there are a total of 42,109 valid rebates that amount to $1,995,190; (j) if Connect 3D had paid the May and June, 2007, invoices, Buy.com would have continued to invoice Connect 3D for the remaining valid rebate redemptions [id., #46]; and (k) Buy.com has incurred $99,866.57 in attorney fees in connections with the class action [id., #50].  Def. Connect 3D is unable to, and did not file a substantive opposition to this motion.  Grant Summary Adjudication as to the 1^st and 2^nd Causes of Action.

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#07CC10536

Smith Chapman & Campbell VS Piatt

1. Motion to Continue Trial Date – Deny.

The only reason for the requested continuance is for Def. to retain counsel.  That action should have occurred months ago and is not now a valid reason for continuance, especially since no reason is provided why this was not accomplished earlier.

2. Motion for Clarification – Deny.

On 6/6/08, the Court ruled on Cross-Def. Law Firm’s demurrer and motion to strike the 1^st Amended Cross-Complaint.  As to the demurrer, the Court sustained without leave to amend the demurrer to the 1^st C/A for breach of contract, and overruled the demurrer to the 2^nd - 4^th C/As for common count, negligence and fraud.  As to the Motion to Strike, the Court granted, without leave to amend, the motion to strike punitive damages from the 1^st C/A; denied it as to the 2^nd and 4^th C/As; and granted, with 10 days leave to amend, as to the 3^rd C/A for negligence.  Cross- Complainant Piatt did not file an amended cross-complaint.  Trial on the Cross-Complaint will be as the pleading was formed by the ruling of 6/6/08, as Cross-Complainant did not avail himself of the opportunity to amend.  Here, there is no need to clarify.

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#07CC10539

Cazessus VS Medina

1. Demurrer to 1^st Amended Complaint – Sustain.

The 1st Amended Complaint is unclear as to whether Pls. have standing because the status of any spouse or issue is not affirmatively denied.  See McConoughey v. Jackson (1894) 101 Cal. 265, 269.  This material term must be set forth in the pleading.  Moreover, the pleading needs to state the capacity of Pls. as successors-in-interest to proceed on the survival C/A.  Lastly, Pls. have not provided a certified copy of the death certificate as required by CCP 377.32.  A copy must be attached and incorporated by reference with any further pleading in this matter.

2. Defs. Motion to Strike the allegations of oppressive, fraudulent and malicious conduct, and request for exemplary damages and prejudgment interest is granted in its entirety.  Any allegations seeking punitive damages and prejudgment interest in the 2^nd Amended Complaint must specifically name the defendants against whom the allegations are made to avoid ambiguity.

10 days leave to amend.

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#07CC11129

Hoover VS Kuhler

CONTINUED TO 08-08-2008

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#07CC11840

Nokes & Quinn VS Safren

Motion for Assignment Order – Grant.

The payment rights of the Judgment Debtor, Ronald Safren to the payment of money due or to become due, including accounts receivables, general intangibles, accounts, deposit accounts, royalties, fees, commissions, and other rights to money due from his activities as an entrepreneur, businessman, promoter, real estate manager, business manager, real estate developer, financier, and investment banker and from any business entity or person with which he is affiliated, including Pacific Huntington LLC, Shenandoah Springs LLC, and Cary Safren, to the extent necessary to satisfy the judgment entered in this action totaling $38, 754.56, are ordered assigned to plaintiff and judgment creditor Nokes & Quinn.

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#07CL05323

Magna & Magna VS Lohrke

OFF CALENDAR

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#07-30-00100671

Shulman Hodges & Bastian LLp VS Rothbard

Continued to 8/1/08

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#08-30-00105818

Linadauer VS Burnstine

Demurrer to Complaint – Overrule.

Pursuant to the request of Defs., the Court takes judicial notice of the file in Olivarez v. JAC Even Resources, Inc., OCSC No. 00CC07654.

Review of the underlying file reveals that (1) the parties are not the same as the instant case, and (2) the transactions are not the same, nor are the causes of action. 

The stay of the underlying proceeding because of the bankruptcy of JAC has no bearing on Pl. pursuing claims against Burnstine, who allegedly guaranteed the performance of JAC under the lease agreement.

Def. Burnstine’s demurrer to the Complaint is overruled in its entirety.  Def. is ordered to file his answer to the Complaint within 10 days of notice of this ruling.  Pls. to give notice.

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#07CC09776

Smith VS Ertz

Motion to Disqualify Attorney of Record – Deny.

1. Mandatory Disqualification:  The scant evidence submitted on this point establishes there was no attorney-client relationship.  The incidental conversations in a public place, in the presence of a third party (Smith), discussed the reasons for, and the acquisition of the property, and the best way to hold title.  The Complaint I this action was not served on Ertz until 09/07.  He offers no evidence that at that time he regarded Kolar as his attorney in connection with this matter.  An attorney-client relationship cannot be created by the unilateral declaration of one party to the relationship.  Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4^th 719, 729.

Moreover, Ertrz’s statements that confidential information was disclosed, even if accepted, are insufficient to create an attorney-client relationship.  While Ertz does not have to disclose the confidential information to prevail on this motion, he must make some showing about the nature of the communications, or at least provide a statement of how they relate to the current representation.  Conclusory statements are insufficient to support disqualification.  Elliott v. McFarland Unified School District, 165 Cal.App.3d 562, 572.  While MP attempts to relate the conversations to certain allegations of the Complaint, without more detail the discussions described can be fairly characterized as preliminary and peripheral.  This is especially true given the status of this case at that moment – there was no case.

2. Discretionary Disqualification:  There is no showing the information imparted is substantially related to this case.  Even if Kolar understood the purposes of the acquisition and advised concerning the entity formation, there is absolutely no evidence she ever offered any advice about the actual running of the LLC.  This action is about events that happened after the formation of the entity; not about whether the form of entity is appropriate.

Additionally, discretionary disqualification must be denied because of the delay in bringing this motion.  MP was served over nine months ago; trial is just a few weeds away.  His attorney has been involved since at least mid-October.  Kolar has been counsel of record during this entire period.  In the Court’s view, it would be inequitable to disqualify Kolar on a discretionary basis at this point in the proceedings given the history of the case.

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#08-30-00106613

BMW Bank of North America VS Oquin

Application for Writ of Possession – Grant.

Per the vehicle report from Datalink (Exh. 1), Def. has given the DMV the Highland address on his renewal of his registration of the subject vehicle.  Additionally, Postmaster response to inquiry is that the Highland address was where Def. mail is delivered (Exh. 5).  The Court is now satisfied that the Highland address, where the motion was served, is the correct mailing address for Def.

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#07CC10694

Jaco VS Gonzalez

CONTINUED TO 09-12-2008

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