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Superior Court of the State of California
County of Orange
TENTATIVE RULINGS FOR DEPARTMENT C-56
Honorable Kirk H. Nakamura, Judge
July 24, 2008
Law and Motion is heard in Department C-56 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling.
The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible.
The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (714) 834-4752. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’s signature, if appropriate under CRC 3.1312.
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AH Technology Solutions v. Juarez |
Demurrer to First Amended Complaint: SUSTAIN as to 5th cause of action (fraud) without leave to amend; otherwise OVERRULE
The demurrer addressed to the entire complaint on the basis of uncertainty is OVERRULED. Such demurrers are disfavored and any any uncertainties or errors in listing trade secrets are more appropriately addressed in the motion to strike.
The demurrer to the 1st cause of action (breach of contract), 2nd cause of action (misappropriation) and 6th cause of action (unjust enrichment) is OVERRULED. Defendant challenges only part of the 1st and 2nd causes of action and concedes that the 6th cause of action is survives the demurrer if the 2nd cause of action does.
The demurrer to the 3rd cause of action (unfair practices) is OVERRULED. Plaintiff’s claim is not based on unfair advertising but on breach of contract and misappropriations. See Consumer Union of U.S. v. Fisher Dev. Inc. (1989) 208 Cal.App.3d 1433.
The demurrer to the 4th cause of action (intentional interference with contractual relations) is OVERRULED. Plaintiff has alleged “independently wrongful” acts of breach of contract and misappropriation of trade secrets that will support this cause of action. The facts alleged also plead a violation of Labor Code section 2863.
The demurrer to the 5th cause of action (fraud) is SUSTAINED without leave to amend. Plaintiff has alleged nothing more than that defendant concealed his alleged wrongdoing from his employer. Plaintiff has cited no authority that a cause of action for failing to reveal one’s wrongs can be a basis for such a cause of action.
The request for judicial notice is DENIED for non-compliance with CRC 3.1113(m) and 3.1306(c).
Motion
to Strike Amended Complaint: GRANT as set forth below, with 20 days leave to
amend. Paragraphs 7 and 8 are stricken. It is unclear whether plaintiff’s failure to address the “amended” motion was deliberate or unintentional.
The allegation of “names, phone numbers and email addresses” in paragraph 10 is stricken. Plaintiff must plead with factual particularity the efforts made to keep this information secret and the reason why it has value from being generally known. Civil Code section 3426.1(d). The court rejects the argument that disclosure in a pleading bars a trade secret claim. Defendant has not cited any specific authority to this effect.
The allegation of “and other information” in paragraph 10 is stricken. If there are “other” trade secrets, plaintiff must identify them.
Moving party to give notice. |
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Butcher v. Bloom |
Motions to Compel (12): GRANT ALL; sanctions in the amount of $200 granted to be assessed against responding parties as to each motion payable in 30 days.
Defendant’s Motions to Compel Response to:
Moving party has shown that plaintiffs have failed to respond to properly served and propounded discovery. See CCP sections 2030.290, 2031.300.
The failure to respond appears willful. Sanctions are appropriate under CCP section 2023.010-040. The court grants sanctions in the amount of $200 per motion against plaintiff and plaintiff counsel jointly and severally payable in 30 days.
Defendant to give notice.
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Comerica Bank v. Heiss |
2 Applications for Right to Attach: CONTINUE TO 8/21/08 for fully executed declaration of Mr. Sluyter setting forth date and location of execution.
Moving party to give notice. |
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Commonwealth Capital Corp. v. Quick Loan Funding |
Petition for Writ: OFF CALENDAR |
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Corona v. Patel |
Continued to 7/31/08
Moving party to give notice.
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6 |
Mendez v. Nguyen |
Motion to Strike: CONTINUED to 8/21/08
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McCarroll v. Cote |
Motion for Attorneys Fees: GRANT in the amount of $8797.50
It is clear that under CCP section 685.040 a judgment creditor is entitled to the reasonable and necessary cost of enforcing a judgment. The court finds that except for the fees incurred in the letters to the judgment debtor ($700) the amount of time expended and rate charged were reasonably necessary as enforcement costs.
Moving party to give notice.
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Mora v. Harbor West |
OFF CALENDAR
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9 |
Pointe Construction |
Application for Right to Attach: DENIED without prejudice to refile
Plaintiff failed to timely serve notice of continuance. Defendant has not appeared and has no address of record; therefore, he must be personally served. In addition, the application fails to state the amount of the proposed attachment.
Moving party to give notice. |
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21st Century Investments v. Capo Portofino |
Motion for Leave to File Cross-complaint: GRANT
No opposition filed. The cross-complaint appears to be compulsory and the court must allow the pleading if it is filed in good faith.
CMC is also scheduled.
Moving party to give notice.
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11 |
Volga v. Potter |
Motion to Strike Portions of Complaint: DENY
Plaintiff’s allegations are sufficient to support an award of punitive damages against defendant Potter under Taylor v. Superior Court (1979) 24 Cal.3d 890. It is alleged that defendant Potter intentionally consumed alcohol knowing this would impair his ability to drive, drove recklessly and continued to do so even when plaintiff asked him to stop. The court notes that the exemplary damages attachment applies only to Potter and not Kanel, who as the owner of defendant’s vehicle is not liable for punitive damages.
Responding party to give notice. |
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Eichler v. Stewart |
Special Motion to Strike CCP 425.16: GRANT
No opposition filed. The court exercises its discretion under CCP section 425.16(f) to hear this late filed motion. The motion was filed only six days late, and there has been no objection or showing of prejudice by plaintiff.
Moving parties have presented sufficient evidence showing that this dispute arose from speech on a matter of public interest, i.e. accusations of financial improprieties of a high profile non-profit corporation. The burden then shifts to plaintiff to establish the probability of prevailing on his claims. CCP section 425.16(b)(1).
Plaintiff has not opposed this motion and clearly has not met his burden. Defendants are to file a proposed judgment.
Moving party to give notice. |
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