Case Name

Tentative Ruling

1.

Abbas v. Khan

The motion is granted.  Plaintiff to file and serve a 1st Amended Complaint within 10 days.

Notes: The proposed pleading is attached as an exhibit rather than lodged separately; it cannot be blue-backed.  Plaintiff must file another signed copy and serve it to start the time to answer running.

Moving Party to give notice. 

2.

Alcantar v. Greenman

The demurrer to the 1st cause of action for breach of contract is sustained without leave to amend.  The court takes judicial notice of Defendants' Ex.C, ¶3 & ¶4

The demurrer to the 2d cause of action is sustained with 10 days leave to amend.  The complaint is unverified, and Plaintiff has not pled a cause of action for constructive trust, necessary to support a quiet title cause of action under Nevarez v. Nevarez (1962) 202 CA2d 596.

The demurrer to the 3d cause of action for intentional infliction of emotional distress is sustained without leave to amend.  Plaintiff has pled only breach of contract.

The demurrer to the 4th cause of action for negligent infliction of emotional distress is sustained with 10 days with leave to amend to plead facts giving rise to a duty.

The demurrer to the 5th and 6th causes of action is sustained without leave to amend.  The facts of this case do not establish the elements of Westside Center Associates v. Safeway Stores 23 Inc. (1996) 42 Cal.App.4th 507, 521-522, including the relationship with a third party. 

The demurrer to the 7th cause of action for fraud is sustained without leave to amend.  At the time the promise was made, Plaintiff and Defendants' daughter were married.  Under these circumstances, there is no basis for an inference of fraudulent intent at the time of the promise and/or representations.  Tenzer v. Superscope (1985) 39 C3d 18, 30.  In addition, the cause of action lacks specificity.

The demurrer to the 8th cause of action for loss of consortium is sustained with 10 days leave to find another cause of action to support Plaintiff's contentions.

Moving Party to give notice.

The Claim of Exemption is continued to 7/31. On that date, court intends to grant. At least 75% of an employee’s disposable earnings are effectively exempt from all nonsupport earnings withholding orders. CCP§706.050; 15 USC §1673(a). The amount remaining is not sufficient to support the debtor.

3.

Busby v. Barshtak

Plaintiff’s Motion to Set Aside Judgment is denied. None of the required “mistake, inadvertence, surprise, or excusable neglect” has been demonstrated by Plaintiff here.  Cal. Civ. Proc. Code 473(b).  Nor does there appear to be any extrinsic fraud. The Motion to Enforce is moot.  Defendants to give notice.

4.

Deutsche Bank Trust v. Pan

Motions continued to 9/4.

5.

Fischer v. Gold Coast

No Tentative.

6.

Gutierrez v. Calif. School

Motion to Strike is denied. Defendants failed to make a prima facie showing that Plaintiff’s complaint arises from defendants constitutionally protected free speech or petition activity.

Demurrer is sustained without leave to amend as to the 2^nd cause of action for Intentional Interference with Prospective Economic Advantage and 3^rd cause of action for Fraud and Deceit. Demurrer is sustained with 10 days leave to amend as to the 1^st cause of action for Defamation and 4^th cause of action for IIED for failure to state sufficient facts to constitute a cause of action. The court cannot determine if the essential elements of the cause of action for defamation have been pled based on the conclusory statements apparently attributable to all ∆s both orally and in writing as pled in the complaint. IIED appears to arise from, and is premised upon the defamation cause of action. Motion to Strike is moot.

7.

Krogh v. Baker

The Baker Defendants’ Motion for Order Setting Aside Plaintiffs’ Request for Default Judgment and Permit Defendants to File and Serve a Response to Plaintiffs’ Complaint is denied without prejudice for lack of evidence.  No declaration or other evidence was submitted by the Baker Defendants.

Notes:  While the P&As make a persuasive argument, the motion fails to be supported by any evidence on which the Court could find mistake, surprise, excusable neglect, etc.  However, professionalism would call for counsel to notify another counsel they are moving to take a default and therefore the Court is exercising its discretion and denying the motion without prejudice.

8.

Lans v. Hucko

The motion of the Law Offices of Charles B. Tourdot to be Relieved as Counsel is granted. 

9.

LJC Investment v. Yamato Express LLC

Yamato Express’s Motion to Vacate judgment or for Modification of Judgment is granted in part. The Court orders that the Judgment be modified as follows:

Page 2, Paragraph 4, lines 20-21, second sentence: “Judgment is for the cross-defendant on all causes of action on the cross-complaint except for Rescission causes of action, on which Judgment is for the cross-complainant.”

Page 2, paragraph 5, line 22, first sentence: “The Court finds that Yamato Express is the prevailing party in the action.”

 The Motion for Attorney Fees and the Motion to Strike Costs are Moot based on the above.  Defendant to prepare Amended Judgment in accordance with this ruling and submit to the Court. 

10.

Lockheed Federal Credit Union v. Awadgamala

Plaintiff’s Motion to Vacate Dismissal is denied without prejudice for failure to provide evidence of surprise, mistake, or any other basis pursuant to CCP § 473(b).  The Court also notes that the factual basis for the motion is at odds with the Court’s records.  PL to give notice.

11.

MMack Pizza v. 10 Point Pizza, Inc.

Defendant’s demurrer to the Complaint is overruled. News publicity is not sufficient notice of a potential claim to begin the running of the statute of limitations. Unruh-Haxton v. Regents of University of California, 162 Cal. App. 4^th 343, 365-366 (2008). With respect to the Dana Point store, Defendants argument is unavailing. The Complaint clearly states that the two stores were purchased in a single transaction. Complaint at 5, Para FR-5.  Answer to be filed within 10 days.  Request for Judicial Notice denied.  The articles are hearsay, unauthenticated and there is no indication of how widely circulated these news sources are.

12.

Medina v. Walker

Plaintiff’s Demurrer to the Answer of the City of Anaheim is sustained with leave to amend as to the challenged affirmative defenses for failure to state facts. CCP 430.10(e). Defendant has 14 days leave to amend.

13.

Robert Clapper v. All West Iron

Motion is granted.

14.

Sumrall v. SHP Lessee

Continued to 7/31.

15.

Sirivongsa v. Sourinthone

No Tentative

16.

Wat Phosayaram v. Sirivongsa

No Tentative

17.

Top Toys v. Blash

Denied.  The only defendant who is a party to the purchase agreement is Joe Blash dba Blash Enterprises.  Plaintiff has not established alter ego liability for the other defendants.  As to Joe Blash dba Blash Enterprises, plaintiff has not shown that its claim is probably valid.  Defendants have established that the payments made plus offsets of total more than the alleged amount owed of $178,728.75.

18.

Voight v. McBride

     The Court deems plaintiff’s Motion for Reporter’s Transcript as a designation of reporter’s transcript under California Rules of Court Rule 8.130 and for designation of clerk’s transcript under California Rule of Court Rule 8.122(a)(1), and a Motion for waiver of costs for the preparation of those two documents.  On that basis, the Motion is granted, in part, and denied, in part.

          The Motion for a waiver of costs for the preparation of the clerk’s transcript is granted under California Rule of Court Rule 3.61(9).  The clerk is ordered to prepare the clerk’s transcript as requested by plaintiff, in accordance with the California Rules of Court.

          The Motion for a waiver of costs for the reporter’s transcript is denied.  The court may not grant the requested waiver.  Plaintiff must comply with the provisions of California Rule of Court Rules 8.130(b)(3) and (c)(1). 

          Plaintiff’s Motion to Compel Response with Subpoena is denied.

          A subpoena that does not comply with statutory requirements has no force or effect.  Johnson v. Superior Court (1968) 258 Cal.App.2^nd  829, 336.  The subpoena to third-party witness Thomas Gleim for production of records is ineffective as either a deposition or trial subpoena.

          If regarded as a deposition subpoena for the production of records under CCP § 2020.030, it is in the wrong form and does not appear to have been served on defendant as required by CCP S2025.220.

          If regarded as a trial or hearing subpoena, it may not properly be issued by defendant representing himself in propria persona. CCP §1985(c).

19.

Wilson v. Fe and PVR Wilson

Continued to 9/11.  

20.

Windemuth v. Knott’s Berry Farm

Motion to Quash Subpoenas is granted. Sanctions against defendant’s and/or their attorneys of record in the amount of $265.

21.

Hailey v. Calif. Physician’s Service

The Motion is denied without prejudice.

Notes: The motion is at least premature. Urbaniak (1993) 19 CA 4^th 1837 held that a reversal of a summary judgment on appeal and remand for trial does not entitle the party who secured the reversal to an award of attorney’s fees under the CA attorney general statute.  On a reversal of Summary Judgment, the parties are left in the same position they would have occupied if they had defeated the motion in trial court.  Significantly, Moving Party cites no authority in support of their arguments.

          The Court need not consider the other arguments set forth in the Opposition if the motion is found to be premature.  However, the argument that the primary purpose of MPs action is to advance or vindicate their own personal economic interests also appears to have merit.  Attorney’s fees should be denied even where there is some incidental public benefit from the suit Flannery (1998) 61 CA 4^th 629, and that appears to be the case herein.  As noted above, Moving Party only sought contract and tort damages, and did not request relief for others similarly situated. The cases in which attorney’s fees are awarded under CCP §1021.5 are cases where the goal of the case is to obtain relief benefiting a large number of individuals.  Colgan (2006) 135 CA 4 ^th 663; Folsom (1982) 32 C 3d 668.

          Finally, because of the two preceding conclusions, the court does not need to consider the reasonableness of the amount of fees requested.

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