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Case Name

Motion

Tentative

1

Boyle/J Star Motors

#s 1-5

MP:  P Boyle

RP:  D J Star

#6

Vice versa

#s 1-4

Compel further discovery re interrogs, admissions and production of docs

#5

Stay pl’s depo/quash depo sub/protective order

#6

Compel pl’s depo

#s 1-4

Continue all motions for p&a’s and (re form interrogs) separate stmt

Reasoning:  No p&a’s on any of the motions as is req’d (CRC 3.1113); no sep stmt on form interrog mo (CRC 3.1020); defects are rather technical in nature and should be remedied before ct considers motions on merits

#s 5 & 6

Grant mo for stay of depo, etc. pending further response/production of docs re requests 1, 5, 28, 31, 55, 57, & 58; deny mo to compel depo insofar as it seeks earlier depo

Reasoning:  Ct may control ordering of discovery w/in broad discretionary powers to effect substantial justice (Rosemont 60 C2 709, 712-715; Poeschl 229 A2 383); before depo, pl should have verified responses and docs re items listed above a reas time (10 d) before depo

2

Century 21 /Haberman

Relief from Order of Jmt

Off calendar w/o prej due to pending appeal

Reasoning:  Denial of anti-SLAPP motion is on appeal

3

Calderon/Mortgage

Electronic Registrations

MP:  P Calderon

RP:  Ds Mtge Elec Regis, Quality Loan Service & WaMu

Record lis pendens

Deny w/o prej

Reasoning:  At ex parte, ct ordered pl to give notice of 7/22 hrg;  ct file shows no pos and defts filed no opp; if defts appear at hearing, consider granting mo on cond pl comply w/ notice reqs of CCP 405.22, as it appears pl’s cause 3 relates to title of real prop; pl should be aware of potential liab for atty fees if deft successfully moves to expunge lis pendens

4

Heidari/ESI-FME

MP:  D ESI/FME

RP:  P Heidari

Quash subpoenas

Grant w/o prej as to Cabrillo 16; deny as to ESI/FME but limit discovery to payments made to or from Ramon Wong; deny sancs

Reasoning:  No sep stmt req’d; subs not related to puni claim; trade secrets not involved; ev that Wong/ESI-FME violated the law would be helpful to prove pl’s case; need for discovery outweighs privacy interest, esp if production is limited to pmts; re Cabrillo, discovery re alter ego should be postoned until pl establishes a prima facie case against ESI/FME; sanctions denied due to mixed results

5

Moulton/Hertz

MP:  D Hertz

RP:  Ps Moulton

Multiple MTCs rogs, admissions, and doc production responses from the individual pls

Jon – all

Teresa – all

Allison – all but spec rogs

Andrew – all but spec rogs

Autumn – all but spec rogs

Emily – all but spec rogs

Re all:

Spec rogs – Deny because ct lack juris after 45d under CCP 2030.300(c) runs (Sassoon 147 A3 681)

RFPD – Treat as motion to compel compliance w/ agmt to produce under CCP 2031.320(b) (Sole 128 A4 187) and grant, compliance w/in 14 days

Admissions – Deny because ct lack juris after 45d under CCP 2033.290(c) runs (Sassoon 147 A3 681)

Form rogs – Grant; pl to ans w/o obj w/in 14d; sanctions against Jon of $1090 ([7 X $150] + $40) and $190 against other 5 pls (= $950) for a total of $2,040, payable w/in 30 days

6

Amidon/

CWS Bytemark

MP:  Ds COILSWS.com and Lau

RP:  P Amidon

#1

Demurrer to 1^st amd compl

#2 Strike portions of complaint

#1

Overrule w/ 10d to ans

Reasoning:  (Preliminary note:  although the demurrer and mts would be charitably described as “not paragons of organization and clarity,” the court will nevertheless attempt to address the issues raised) Re causes 1 & 2 re pre-jmt int, defects re damage claim in a cause of action are subj to mts, not demurrer (see CCP 436(a)); re cause 2, good faith/fair dealing breach can arise from breach of contract (and issue of whether cause 2 is merely duplicative of cause 1 was not raised, but the good news is there can’t be double recovery); re causes 3 & 4, compl may allege on info & belief (Doe 42 C4 531, 550); re cause 5, pl has alleged concerted wrongful conduct (unfair competition from cause 3) suff to plead civil conspiracy; to the extent cause 5 alleged wrongful conduct is based on breach of contract, it would be subj to mts not demurrer (more good news:  nws no motion to strike on this ground, pl will not be able to prevail via a breach of contract conspiracy); re cause 5, to the extent it attacks damage allegations, the proper vehicle is mts (but see “good news,” above)

#2

Deny

Reasoning:  Attacks on suff of pleading on causes 2, 3, 4, & 5 are grds for demurrer and cannot be raised in mts; term “co-conspirator” is proper where civil conspiracy is alleged; whether pl is entitled to pre-jmt int cannot be determined from compl, so mts does not lie on that grd; settlement agmt provides for atty fees and costs so allegs are proper

7

Kalai/Time Rover

#2

MP: XD United Revenue Service

RP:  D/XC Drusinsky & Time Rover

#1

Demurrer

#2

Compel arbitration and stay action

#1

O/C (1^st amd compl filed)

#2

Grant; stay action pending arb

Reasoning:  Arb provision gives auditor power to determine scope of arbitration (see Freeman 14 C3 473); arbitrator can determine issues Drusinskys and Time Rover raise re scope, e.g., parties covered and time span; because some parties arguably have some arbitratable disputes, arb order is appropriate; ct must stay suit pending outcome of arb (CCP 1281.4)

8

Ross/Porsche

MP:  P Ross

RP:  None (default jmt)

Amend default jmt

Grant; amend deft’s name from “Porsche” to “Porche”

Reasoning:  Jmts will be liberally amended to correct clerical error (Thomson 112 A2 420; see Brum 154 C 17 [applies to correcting spelling of name of person actually served)

9

Witt/Olson

MP:  D Olsen’s successor trustee

RP:  P Witt

Set aside default

Grant; serve and file ans w/in 10d

Reasoning:  Trial on merits favored; no presump of proper service unless server was registered, which was not the case; defts successor has shown it is more likely than not deft was not served (even if ct considers pl’s decl was not signed under penalty of CA perjury law); presump that ltr mailed was rec’d is not applic; pos of req to enter default is defective because pl signed it; altho not req’d, deft appears to have meritorious defense

10

McKay/Tri-Tech Sales

MP:  Atty De Luca

RP:  Pl McKay

W/draw as atty

Assuming no prej to trial date, grant on cond atty files amended pos showing address of service on pl and proper written order is submitted

Reasoning:  No opp; irreconcilable differences

11

Greenlight Financial/

Goodyear Home Loan

MP:  P Greenlight

RP:  D Goodyear

MSJ and/or MSA

Deny

Reasoning:  Re MSJ, pl has not addressed all seven causes of action (implied indemnity, at the very least) so MSJ is not available/appropriate; re MSA, pl has failed to state in the motion and sep stmt the causes of action to which the motion is directed per CRC 3.1350(b) (mentioning the broker agmt and ratification as an issue presented is not sufficient); re negl per se, even assuming in the absence of authority that B&P 10232.5 was intended to protect sophisticated lenders (see Cal. Serv. Station 62 Cal. App. 4th 1166, 1180 [duty is threshold issue]), and assuming without deciding this loan fell under the RE broker disclosure law and not the consumer finance lending law, and assuming the nephew-aunt relationship is undisputed, disclosure of that relationship is not sufficiently related to sec. 10232.5 to estab negl per se as a matter of law; also, nws pl’s decls, causation is not established as a matter law; moreover, comparative negl is a factual issue; re the DRE regs, they cannot form the basis for negl per se (Cal. Serv., supra), and the regs seem to use a reasonable person std in any event; Greenlight’s guidelines re “arm’s length” cannot form the basis for negl per se or causation as a matter of law; assuming the alleged familial relationship existed, the ev does not estab as a matter of law Wms would have revealed it; mention is made of fiduciary duty, but no cause for breach is alleged on that ground; re ratification and ”corporate estoppel,” pl does not explain and/or provide authority for the latter concept; there are at least two problems with the former:  the equal dignities rule would require a signed ratification, and the principal must have knowledge of all material facts for ratification to occur by accepting benefits (Delfino 145 A4 790, 810) and Goodyear/Kevorkian was allegedly unaware of the forgery until after Greenlight sued; the argument that defts are stuck with prior admissions (see Visueta 234 A3 1609, 1613) is probably not applic on such issues as whether familial relationship existed in that they are not the unequivocal sort entitled to such treatment; reqs for j/n granted; objs overruled for failure to comply w/ CRC 3.1354

Note:  Set trial date if not currently set for 8/18

12

Wilson/Skilled Healthcare

MP:  P Wilson

RP:  D Skilled Healthcare

#1

Trial preference

#2

Discovery referee

#1

Grant; set trial w/in 120d

Reasoning:  Pl is 92 years old; she has a substantial interest in the action as a whole; Dr. Contreras’s decl shows he is qualified to opine pl is infirm and has less than six months to live; clear and convincing medical documentation shows she suffers from an illness or condition raising substantial med doubt she will live beyond 6 mo (CCP 36(d); if pl dies before trial she will lose the opportunity to obtain full measure of damages (see Kline 227 A3 512); thus, her health is such that a pref is nec to prevent prejudice her int in the litigation; the court is satisfied the ints of justice will be served by granting the preference (CCP 36(e); in making this determination, the ct has considered and weighed potential prejudice to the defense re the short setting

#2

Cont 1 wk for parties to work out discovery plan; if parties cannot do so, rule on req for referee

Reasoning:  Discovery referee is extreme remedy; discovery volume and/or misfeasance  is undetermined at this pt; as a starting point, defts’ suggestions re pl providing info/releases w/in 5 days sounds reasonable; both parties should think about what they have to gain or lose by gamesmanship

13

Hughes/North Pacific Developments

MP:  P Hughes

RP:  D North Pacific

TRO/Prelim inj

Grant TRO; set for hearing

Reasoning:  Land is unique; loss of the property would be irreparable harm; even assuming acceptance of pmts does not constitute a waiver of election to declare a default and accelerate (see Birkhofer 27 A2 513, 524), and further assuming the failure to record the notice of default and election to sell before the receivership terminated did not deprive NPD of the grounds for its rt to sell, NPD errs in its premise that Hughes was divested of any ownership interest by virtue of the receivership – Hughes was divested of control, not ownership