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Case Name

Tentative

1.

CIT Communications Finance Corp. vs. Fresh Enterprises, Inc.

Off calendar

2.

Harbor Ridge Crest Maintenance Assn. vs. McLaughlin

Off calendar

3.

Koepp vs. Lafayette Company

Motion for leave to file a SAXC DENIED. A chronology of the case demonstrates why this motion is not well-taken. Moving parties filed their cross-complaint on May 3, 2006. By December of that year, and most likely prior to that time, they had retained their expert witness, Dr. Goldweber. A little over one year later, in January of 2008, they obtained the CT scan which is at the heart of this motion. By early March of this year, Dr. Goldweber testified that Dr. Sakover acted below the standard of care. The court presumes that counsel for moving party was aware of that opinion prior to the deposition. On April 7, 2008, moving parties brought an ex-parte application to continue the trial solely on the basis of attorney unavailability. No mention was made of the intent to bring in Dr. Sakover, even though moving parties must have clearly harbored such intention by then (especially given that the depositions of two other expert witnesses had been completed by then, and that they both testified that Dr. Sakover’s alleged misreading of the CT scan adversely affected the treatment rendered to the decedent, Mr. Koepp). Trial was continued, but the discovery cutoff dates were not. The opposing parties were harmed by moving parties’ tactical move, as they would be precluded from conducting discovery on the liability issues which would arise from the inclusion of a new party. Interestingly, in their reply, moving parties do not address the timing issue raised in the opposition and do not explain why counsel waited until early 2008 to obtain a copy of the CT scan. The prejudice to the opposing parties were the motion granted would be substantial. Additional discovery would not be minor, as moving parties contend. Not only would Dr. Sakover need to be deposed. Proper trial preparation would include deposition(s) of his expert witness(es), as well as possibly written discovery. Not only that, but if the expert witnesses for the existing cross-defendants change their opinions based on the inclusion of Dr. Sakover, they too would need to be deposed. All this would need to be accomplished in less than five months (assuming that it takes some time to serve Dr. Sakover and assuming, at best, that the first paper he files is an answer). In making this ruling, the court is also mindful of the age of this case; the complaint was filed more than 3½ years ago. It would not be unreasonable, or unexpected, for Dr. Sakover to seek a continuance of the trial in order to properly prepare his defense, a motion which this court may need to grant in the interest of justice.

4.

Mirsoltani vs. Shobery

Off calendar

5.

Mango vs. Allianz Life Insurance

1) Demurrer by Allianz Life Insurance Co. of America to FAC SUSTAINED WITH LEAVE TO AMEND. Nowhere in the operative pleading does plaintiff allege that this demurring defendant was an insurer. Yet the FAC alleges that Allianz owed duties associated with an insurer (e.g. engaging in reasonable investment strategies). Thus, the FAC is uncertain. As for moving party’s argument that, as a matter of law it cannot act as an insurer, an insurance agent, and a broker/dealer of life insurance, that does not mean that in actuality it did not act in more than one such capacity, and the demurrer is overruled on that ground. 2) Demurrer by NY Life Insurance Co. to the 2^nd C/A of the FAC is SUSTAINED WITH LEAVE TO AMEND. It is not clear in California that a fiduciary relationship exists between an insurance broker and the insured (Hydro-Mill Co., Inc. vs. Hayward, Tilton & Rolapp Ins. Assocs., Inc. (2004), 115 Cal.App.4^th 1145, 1156). Nevertheless, a broker still owes certain fiduciary duties to the insured (ibid, at 1158). Plaintiff argues that the fact pattern in the operative pleading is akin to that of an agent who did not select insurance which included the best premium. However, that is not what the FAC alleges. It alleges that the coverage was too much, not that the premium was not the best price. The reference in the Hydro-Mill opinion to the observation of Justice Croskey, that “‘fiduciary duty’ may refer merely to avoidance of conflict of interest, self-dealing, excessive compensation, etc.’” (at p. 1158) is not an affirmative holding that that is the law. Even if it were the law, the allegations in the FAC do not rise to avoidance of conflict of interest, etc. Amend within 20 days’ service of notice of ruling.

6.

Nguyen-Lam vs. Westminster School District

1) Motions of defendants Reed, Purcell, and Westminster School District to strike SLAPP suit – The court rules as follows on defendants’ evidentiary objections: A) To the declaration of Kimoanh Nguyen-Lam – 1-3, 5, 6, 8, 10, 11, 15 sustained. The rest are overruled. B) To the declaration of Blossie Marquez – 12 as to “maliciously” only, 14, 15 second sentence only, 16, and 17 “improperly noticed” only, sustained. The rest are overruled. The motions are GRANTED. Moving parties have made a prima facie showing that plaintiff’s lawsuit arises from their exercise of protected activity, to wit: making statements “in connection with an issue under consideration or review by a legislative body … , or any other official proceeding authorized by law” (CCP §425.16(e)(2)) and “any other conduct in furtherance of the exercise of the … constitutional right of free speech in connection with a public issue or an issue of public interest” (CCP §425.16(e)(4)), to wit: official proceedings discussing plaintiff’s selection as superintendent, which was an issue of public interest. Plaintiff has not met her burden of demonstrating a probability of prevailing on the claims she has asserted against these moving parties. As for the 1^st C/A (violation of the Brown Act), plaintiff concedes that it is defective and indicates that she will dismiss it (Opposition to demurrer, at page 2, lines 19½ -20½). As for the 7^th C/A (defamation), plaintiff failed to present any evidence that these moving parties made any defamatory statements to third parties. In neither plaintiff’s declaration nor that of Ms. Marquez is there any mention of defendant Purcell’s making any such statements. Ms. Marquez does state that, at the June 9, 2006 Board meeting defendant Reed said that he did not believe that plaintiff had the qualities or qualifications for the superintendent position. That statement is an opinion which is not actionable (Morrow vs. Los Angeles Unified School Dist. (149 Cal.App.4^th 1424, 1444). As for the 8^th C/A (invasion of privacy), plaintiff failed to present any evidence that any of these moving parties disclosed a private fact to the public, a necessary element of this C/A. Since, as impliedly conceded by plaintiff, the school district’s fortunes in this motion rise or fall along with the fortunes of the individual moving parties, the motion must be granted as to it as well. 2) Demurrer of defendants Reed, Purcell, and Westminster School District – The court addresses only those C/As which remain after the ruling on the anti-SLAPP motion. The demurrer is sustained without leave to amend as to the 2^nd C/A (breach of contract) and 3^rd C/A (breach of the implied covenant of GFFD). “[I]t is well settled in California that public employment is not held by contract but by statute … ” (Miller vs. State of California (1977), 18 Cal.3d 808, 813). That rule applies to employment by school districts (Summers vs. City of Cathedral City (1990), 225 Cal.App.3d 1047, 1065). As there can be no express or implied contract that restricts the manner or reasons for plaintiff’s termination by the school district, her claims fail as a matter of law. Moreover, it does not appear that she can cure the defect. The demurrer is overruled as to the 4^th C/A (race and national origin discrimination). The complaint alleges that plaintiff is a member of a protected class, that she was qualified for the superintendent position, that she was terminated soon after being hired, and that the reason for termination was due to her race and national origin. These allegations are sufficient. The demurrer is overruled as to the 5^th C/A (sexual orientation discrimination). The complaint alleges that plaintiff is a member of a protected class, that she was qualified for the superintendent position, that she was terminated soon after being hired, and that the reason for termination was due to because of the perception that she was “a lesbian or someone who supports gay and lesbian rights.” The allegations are sufficient. The demurrer as to the 6^th C/A (violation of Labor Code §§1100 et seq.) is overruled. Defendants’ argument is based on a misreading of the opinion in Lockheed Aircraft Corp. vs. Superior Court of Los Angeles County ((1946), 28 Cal.2d 481). They rely on the following statement in the case: “The contract of employment must be held to have been made in the light of, and to have incorporated, the provisions of existing law” (ibid, at 486) to argue that plaintiff’s only remedy for the statutory violation is a breach of contract C/A. However, the Lockheed case imposes no such limitation. Rather, the high court was referring to Lockheed’s argument that Labor Code §1101 constituted an unjustifiable and arbitrary limitation on the liberty of contract, in that Lockheed is free to contract with its employees regarding rules or terms of employment, so long as the contract is consistent with existing law and that its employees can sue for breach of contract. Answer to be filed and served within 15 days’ service of notice of ruling.

7.

Network Commercial Service, Inc. vs. Fisher

Off calendar

8.

Parent vs. State of California

Off calendar

9.

Scull vs. County of Orange

Off calendar

10.

Weter Motors vs. DaimlerChrysler Motors Company

Off calendar

11.

Schafer vs. Womack

Unopposed demurrer SUSTAINED WITHOUT LEAVE TO AMEND. Moving parties have established their entitlement to immunity from this lawsuit. They have also established plaintiff’s failure to comply with the governmental claim requirement. From plaintiff’s failure to file an opposition, the court infers that he is conceding moving parties’ position and that he will be unable to amend to cure the problems.

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