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Chapagne v. Dalton

Motion 1:  Motion of Brook and Megan Champagne and Alex Brant to Quash Subpeona.

Ruling:

Motion 1:  The Motion to Quash is granted in part.  The production called for under the subpoenas shall be given, but prior to production, the parties shall submit to the court a stipulated protective order.  The stipulated protective order shall be submitted to the court on or before April 11, 2008 (By “the court” this ruling applies to the newly assigned Judge to this case as this court is switching assignments) or the production will be made without such a protective order.  No sanctions.  CCP 1987.1, 1987.2.

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Barlett Care v. Shewry

This was continued at the request of the parties to May 16, 2008 as they are trying to settle the case.  (Motion to Change Venue)

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California Customs Sunrooms v. Metals USA

Motion 1:  Request of all parties to continue the trial one week to allow a defense counsel to attend his daughter’s graduation in Oklahoma.

Ruling:

Motion 1:  The Motion to continue is granted.  The trial is trailed one week until June 9, 2008.  The pretrial date is to remain.  The continuance does not extend any discovery time.  That is discovery is terminated based on the June 2, 2008 date.

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Culver v. Carillo

Motion 1:  Demurrer to the First Amended Complaint.

Ruling:

Motion 1:  The demurrer of defendant Carillo to the first amended complaint is overruled.  On the breach of contract claim, one of the contracts pled is an installment like contract and the defenses raised do not appear on the face of the pleading.  Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co, (2004) 116 Cal. App. 4^th 1375.

Plaintiff has pled all the elements for claim Partition.  CCP 872.230

Plaintiff has not recorded a lis pendens as required.  The Court, on its own motion order the plaintiff to record the lis pendens and stays the action until the lis pendens is recorded and this shall be done on or before April 15, 2008.  CCP 872.250.

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Casco v. The Summit at Turtle Ridge.

Motion 1:  The demurrer is off calendar at the request of the moving party.

Motion 2:  Plaintiff’s Motion for Preliminary Injunction.

Motion 3:  Motion to Advance the Trial Date.

Ruling:

Motion 2:  The Motion for Preliminary Injunction is denied.

Motion 3: The motion is denied

We have two architects saying very different things.  The court cannot say that the plaintiff has met his burden of proof to establish the right to the requested relief.  This is based on all the evidence submitted including the plaintiff’s initial approval of the room addition and the separate looks the association took at this issue along the way.  If plaintiff turns out to be right, it could be expensive for the defendants to fix.

Motion 3

It is clear from the pleadings to date that there is substantial discovery that needs to be done and the court must give enough time to allow a Summary Judgment motion to be filed in this case given the issues.  There is not a sufficient showing to require advancing this matter.  The trial setting currently in place protects the rights of all the parties.

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Faxon v. Rich

Motion 1:  Demurrer of Ticor Title to the Cross-complaint of Howard Rich.

Motion 2:  Motion of Ticor Title to Strike portions of the Cross-complaint.

Ruling:

Motion 2:  The demurrer of Ticor to the Cross-complaint of Rich is sustained with leave to amend on or before April 11, 2008.

Motion 3:  The Motion to strike is moot.

On November 27, 2007 Rich filed a cross-complaint alleging 13 causes of action.

The demurrer and motion to Strike by Ticor are to the 5^th, 6^th, 7^th and 13^th causes of action.

5^th CA:  Breach of Contract (3^rd party beneficiary)

Basically Ticor says that the 5^th CA fails because it alleges a contract was breach by Ticor for failing to follow the escrow instructions.  They complain that the escrow instructions are not attached and the contract is not pled verbatim. 

The court believes that Rich is arguing that he properly pled the “legal effect” of the contract.  (since it is clear that the contract is not attached or pled verbatim.)

Rich says they pled precisely what the written escrow instructions required Ticor to do and how Ticor breached the contract.

Court:  The case cited by Rich supporting his “legal effect” argument does not support his position.  McKell v. Washinton Mutual, Inc., (2006) 142 Cal. App. 4^th 1457. 

In paragraph 53 of the cross-complaint Rich writes “contrary to the written escrow instructions, Ticor failed to send a written request for payoff demand statement to Cross-Complainant.”

This is not sufficient to plead “legal effect”   Nothing in that statement provides that the substance of the relevant terms of the escrow instructions have been pled.  Curious because Rich was not even party to the contract.  The legal effect as pled by him is speculative.

Attach the instructions and tell us what they mean.  Sustain with leave.

6^th CA:  Breach of Statutory Duty:

Ticor says this cause of action fails because Rich does not identify any contract provisions that identify Ticor as Faxons agent or the scope of the agency.  Also, Rich fails to plead with specificity the provisions Ticor may have violated.  Ticor argues that CC 2943 does not impose obligations on Ticor because it focuses on the beneficiary’s duties (Rich’s duties) and obligations to provide a payoff statement upon demand.

Rich says Ticor misinterprets CC 2943.  He argues that this section is not limited solely to the duties of a beneficiary.  Instead 2943 allows an entitled person to rely on a beneficiary statement submitted by the beneficiary or an “authorized” agent.  Here Ticor undertook the responsibilities of an entitled person and was required by 2943 to send a written request for a payoff demand statement to Rich.  Ticor did not do this and violated 2943.

Court:  All parties agree that the “entitled person” referred to in section 2943 is Faxon.  The “beneficiary” is Rich. 

Problems:  the pleading does not indicate exactly which portion of 2943 Ticor failed to comply with.  Also, it appears that the statute refer’s to the “beneficiary’s obigations (Richs) and not the “entitled person’s (and their agents (Ticor).  Sustain with leave

7^th CA:  Unfair Competition

Ticor says the only law they are alleged to have violated was 2943 and since they win on the 6^th cause of action they win on this.

Rich concedes he is not entitled to the remedies prayed for in the prayer on his 7^th cause of action.

Court:  See 6^th Cause of action.

13^th CA:  Equitable Indemnity

Ticor says Rich fails to allege any facts to support this cause of action and has failed to seek declaratory relief as to this parties liability.  Further, it is unclear whether this cause of action is based on breach of contract or an implied indemnity claim.

Rich says Ticor is a co-tortfeasor is this case.  Ticor breached duties owed to Rich and duties and obligations owed to Faxon.  In Plaintiff’s complaint he argues that Rich is wrongfully attempting to foreclose on his property.  The Cross-complaint alleges Ticor is one of the parties that caused this situation.

Court:  Because the pleading has been unable to successfully state a claim against this party there is no basis to allow this cause of action at this time.

Sustain with leave.

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Rezvani v. Tehrani

Motion 1:  Plaintiff’s Motion for Attorney Fees after defeating a ANTI-SLAPP MOTION and after dismissal of Appeal.

Ruling:

Motion 1:  Even though the motion is not opposed, the court finds that the underlying action was not brought in bad faith.  Further, the court notes that the Appeals court did not authorize attorney fees on the dismissed appeal and yet they are sought in this motion.  The motion is denied.

The court cannot say that either pleading was a model of perfection in the Anti-Slapp portion of the case.

Enough said on that point.

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Southern California Investment Association v. Kau

Motion 1:  Motion of Plaintiff to Compel Cherry Kau to Provide Further Responses to Form Interrogatories.

Motion 2:  To compel Cherry Kau to Provide Further responses to a request for production (Set 1)

Motion 3:  Compel responses to request for production (Set 2) and for Sanctions.

Ruling:

Motions 1, 2 and 3:  Each motion is granted and sanctions are awarded against the defendant in the total sum of $1,800.00 in attorney fees ($600.00 per motion) and $120.00 in costs ($40.00 per motion) due and payable to moving party on or before April15, 2008. 

Motion 1 the court finds that responses were submitted on March 6, 2008.  Further responses shall be provided as to Motions 2 and 3 on or before April 15, 2008 with verifications to those responses.

Kau says the motion should go off calendar as it harassment in that she has provided the further responses as to Motion 1.

Motion 1 is a failure to answer interrogatory 17.1.  Apparently in the Reply the moving party admits that they have been received.  The issue is sanctions.

The motion was filed on February 14, 2008 and the supplemental responses (well actually a response to 17.1 was provided on March 6, 2008…they were given after the motion was filed.  Sanctions are appropriate as requested.  (2 hrs at $300.00 per hour against the party + $40.00 in costs)

Motion 2:  The objections were boilerplate.  No attempt to respond in good faith.  No verified responses given at all.  Objections are overruled.

Sanctions appropriate in the same amount as motion 1.

Motion 3:  No response at all.  Sanctions appropriate.  Same as motion 1.

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Zia v. Blast Coat

Motion 1:  Demurrer of Blast Coat Systems, John Ulrich, Jim Bossardt and Carmen Boassardt to the First Amended Complaint.

Ruling:

Motion 1:  The court denies the request of the moving party to take judicial notice of the Unemployment Insurance Appeals Board Decision (Exhibit C) for any purpose let alone to establish “collateral estoppel”.  These findings “shall not be conclusive or binding in any separate or subsequent action or proceeding, and shall not be used as evidence…regardless of whether the prior action was between the same or related parties or involved the same facts.”  Unemployment Insurance Code Section 1960, Pichon v. Pacific Gas and Electric Company (1989) 212 Cal. App. 3d 488, 502. 

The demurrer to the 4^th cause of action is sustained as to all defendants without leave to amend.

The demurrers to the 1^st, 2^nd, 3d and 5^th Causes of Action on the First Amended Complaint as to Blast Coat are OVERRULED and sustained with leave to amend on or before April 11, 2008 as to the individual defendants.

Lets go through the problems:

The demurrer does not state, in the demurrer itself the actual grounds for the demurrer.  The court is left to guess as to the appropriate ground “failure to state”.  However, there is no objection to this defect so apparently the plaintiff knew what the grounds were. 

In many ways this is a “speaking demurrer” and the court is asked to consider the “evidence”.  The court declines to look outside the 4 corners of the document except as authorized by law.  None of that applies here.

2. The problems then compounded when the opposition is “late mailed” on March 17, 2008 and fails to qualify as a “timely pleading”.  This leads, of course to the “late mailed” reply that was mailed on 3-19-08.

The court invites everyone to comply with CCP 430.10 and CCP 10005© in future law and motion proceedings.

1^st CA:  Wrongful Termination.

MP says “collateral estoppel” just look at the Unemployment Insurance Appeals Board Decision and see that we won…dismiss the action.

2^nd CA:  Wrongful Termination in violation of public policy.

Cannot reconcile the termination claim for public policy reasons (I wouldn’t lie to the government therefore I was wrongfully terminated with his allegation that he was offered the 51% in NEWCO and is a member of a socially or economically disadvantage group.  If he would have just accepted the 51% ownership interest NEWCO would have been qualified to appy for certification as a woman/minority owned business.  Beshides he was not urged to provide false inforation.  Even if plaintiff believed defendants had violated the law, his beliefs were unreasonable..just look at his judicial admissions in the Appeals hearing..dismiss the claim.

3^rd CA:  Breach of Contract

MP says:  Plaintiff was offered his 51% in NEWCO and rejected it..therefore no breach  Also, MP had “good cause” to terminate..dismiss the claim

4^th CA:  Breach of Implied Covenant of Good Faith and Fair Dealing.

This is duplicative of the 3^rd CA and fails as a matter of law..dismiss the claim.

5^th CA:  Fraud

MP says this is a “disguised breach of contract claim” and fraud damages are not available.

Also, Plaintiff was terminated for “good cause” after being offered his 51% in NEWCO.  MP says he concedes “good cause” and therefore no fraud.

Besides no CA against any of the individuals since they were all acting as agent of the MP.

By the way the Fraud is in the inducement and MP authorities miss the point.

RP says: 

THE DEMURRER IS WELL TAKEN AS TO THE FOURTH CAUSE OF ACTION.

Plaintiff is not subject to collateral estoppel.  The identity of issues are parties are not met

The Reply:  Hey the 1^st and 2^nd CA fail because we already won infront of the ALJ at the CUIAB.  Etc etc

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