TENTATIVE RULINGS

Department C11 Law & Motion Calendar

 

Date: September 8, 2017

Judge David T. McEachen

Sitting for

Judge Andrew P. Banks

 

 

 

LAW AND MOTION IS HEARD ON FRIDAY AT 1:30 P.M.

Please read rules carefully.  Do not call department unless ALL parties submit on tentative.

 

OBTAINING TENTATIVE RULINGS:  All rulings will be posted on the internet at by Friday 11:00 A.M.

 

The Law & Motion hearings are scheduled on Friday at 1:30 p.m. and all arguments will be heard at that time. The Court will not entertain a request for continuance once the ruling has been posted and no further papers may be filed once the ruling has been posted.

 

APPEARANCES:   The Court will hear oral argument on all matters at the time noticed for the hearing.  If all counsel intend to submit on the tentative and do not want oral argument, please advise the clerk by calling (657) 622-5211.  If all sides submit on the tentative and so advise the clerk, the tentative ruling will become the court's final ruling, and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.

 

Please see rules at the top of this page to check any upcoming changes (if any).

           

                       

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Case Name

Tentative

1

16-878416  Aska Sakan Inc. vs. Mashney Law Offices, APC

 

Motion 1

 

The Motion to be Relieved as Counsel of Record for plaintiff Aska Sakan, Inc. is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to file and serve the required proposed order for this motion.  

 

Motion 2

 

The Motion to be Relieved as Counsel of Record for plaintiff Abdurrezag Kaal is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to: (1) confirm plaintiff Kaal’s current address and to serve Kaal at that address and (2) file and serve the required proposed order for this motion.

 

Moving counsel to give notice.

 

2

15-818011  Aska Sakan, Inc. vs. Yorba CW, Inc.

Motion 1

 

The Motion to be Relieved as Counsel of Record for plaintiff Aska Sakan, Inc. is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to file and serve the required proposed order for this motion.  

 

Motion 2

 

The Motion to be Relieved as Counsel of Record for plaintiff Abdurrezag Kaal is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to: (1) confirm plaintiff Kaal’s current address and to serve Kaal at that address and (2) file and serve the required proposed order for this motion.

 

Moving counsel to give notice.

 

3

16-861435  Degraffenried vs. Degiorgio

Plaintiff’s motion for leave to amend the complaint to add the driver of the vehicle, Andrew Charles DeGiorgio, as Doe 1, is off calendar as moot.  Plaintiff already filed an Amendment to Complaint as a matter of right pursuant to Code of Civil Procedure section 474 on August 17, 2017, and the statute does not appear to require prior leave of court.  While defendant Christopher DeGiorgio raises in opposition whether the amendment is proper under section 474 (correctly noting plaintiff’s motion is unsupported by admissible evidence from plaintiff herself as to her alleged ignorance at the time she filed her complaint regarding Andrew DeGiorgio’s identity), there is no motion pending before the court by the proper party (Andrew DeGiorgio) to quash or strike the amendment. 

 

The court is inclined to continue the trial another 60-90 days to allow time for serve of process on Andrew DeGiorgio and resolution of the issue of the validity of the DOE amendment should Andrew DeGiorgio wish to pursue an objection. 

 

Plaintiff to give notice.

 

4

16-836716  Gallardo vs. Board of Trustees of the California State University

OFF CALENDAR

5

17-918406  Hayakawa vs. Worth

CONTINUED TO 10/06/17

6

16-841713  Jaouni vs. Sterling

CONTINUED TO 9/29/17

7

17-896755  Kim vs. Ghebrial

Defendant’s motion to dismiss is denied in its entirety.  Plaintiff has dismissed his first cause of action for breach of contract and may proceed on the second cause of action for indemnity as asserted in his initial complaint; no new complaint need be filed.  Defendant is ordered to respond to the complaint within 15 days.

Plaintiff to give notice.

 

8

14-762156  Morn vs. Allen

Motion 1:

 

Plaintiff Adam Morn’s Motion to Compel Responses to Special Interrogatories, Set One and Demand for Identification and Production of Documents, Set One by Judgment Debtor Charlie Frank Kennedy is granted.  (See CCP §§ 2030.290.)  Judgment Debtor Kennedy is ordered to provide responses to Plaintiff’s special interrogatories, set one, without objection, within 15 days from service of a notice of ruling by the moving party. 

 

Plaintiff’s request for sanctions against Judgment Debtor Kennedy is granted. (See Code Civ. Proc., § 2030.290, subd. (c).) Judgment Debtor Kennedy is ordered to pay sanctions in the total amount of $22.50 to Plaintiff within 30 days of the service of the notice of ruling.

 

Motion 2:

 

Plaintiff Adam Morn’s Motion to Compel Responses to Special Interrogatories, Set One and Demand for Identification and Production of Documents, Set One by Judgment Debtor Frances O’Malley is granted. (See CCP §§ 2030.290; Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [an unverified response is equivalent to no response at all].) Judgment Debtor O’Malley is ordered to provide responses to Plaintiff’s special interrogatories, set one, without objection, within 15 days from service of a notice of ruling by the moving party. 

 

Plaintiff’s request for sanctions against Judgment Debtor O’Malley is granted. (See Code Civ. Proc., § 2030.290, subd. (c).) Judgment Debtor O’Malley is ordered to pay sanctions in the total amount of $22.50 to Plaintiff within 30 days of the service of the notice of ruling.

 

 

 

 

 

9

15-787852  O&M, LLC vs. Pite Duncan, LLP

Plaintiffs O & M, LLC and Nexus Development Corporation/Central Division’s Motion for Relief from Failure to Timely Deposit Jury Fees is GRANTED pursuant to Code of Civil Procedure Section 631(g).

 

Plaintiffs, through inadvertence, failed to post jury fees, but posted the fees as soon as Plaintiffs became aware of the oversight.  (Rus Decl. ¶¶ 9-12.)  Furthermore, there will be no prejudice, as defendants have already requested a jury trial and posted jury fees. 

 

Moving party to give notice.

 

10

17-906728  Security National Insurance Company vs. Rancho Human Resources Solutions, Inc.

Plaintiff’s unopposed motion to strike defendant’s answer filed 04/03/17 is granted.  A corporate entity may only appear and defend a lawsuit through a licensed California attorney.  The court will give defendant 20 days from service of this order to file an amended answer to the complaint through counsel. Plaintiff is hereby ordered to promptly serve notice of this order on defendant by mail.  Plaintiff may enter defendant’s default only after the expiration of 20 days from service if no amended answer has been filed. 

 

11

16-863773  Vinas vs. Hayes

Motion 1    The demurrer is sustained without leave to amend as to Amy Hayes’ causes of action for constructive fraud and intentional misrepresentation only (the first and fourth causes of action), and otherwise is overruled.  Cross-Complainants’ RJN of the original demurrer filed in this action is granted, but was unnecessary.  The motion to strike is denied.

 

Cross-defendants are to answer the First Amended Cross-Complaint within 15 days.

 

As to the causes of action brought by cross-complainant Wayne Hayes, the demurrer is overruled in its entirety and the motion to strike denied.  Cross-defendants attempt to challenge for the first time the same allegations and causes of action brought by Wayne Hayes in the original cross-complaint, which cross-defendants decided not to challenge in the first demurrer and motion to strike.  The court will not entertain a successive demurrer on issues that could have been raised previously. (Code Civ. Proc., § 430.41(b).)  The demurrer also lacks merit as to the claims by Wayne Hayes, and raises issues of fact relating to damages and remedies that are more appropriately explored in discovery. 

 

The second and third causes of action for rescission, the fifth cause of action for fraud in the inducement and the sixth cause of action for fraud in the execution are alleged by Wayne Hayes only, so the demurrer to these causes of action as to Amy Hayes is moot.

 

Amy Hayes has sufficiently alleged, for pleading purposes, a claim for breach of fiduciary duty against her brother, Albert Vinas, and aiding and abetting breach of fiduciary duty, against Jodi Vinas.  Cross-complainants allege Amy is the spouse of Wayne Hayes, and had an interest in his stock options with Space X, that her brother, Albert Vinas, acted as a financial advisor and fiduciary for both Wayne Hayes and Amy Hayes, and with the assistance of Albert’s wife, Jodi Vinas, Albert convinced Wayne Hayes (without fully informing cross-complainants of the ramifications) to exercise and convey Wayne’s employee stock options for the benefit of cross-complainants, which damaged cross-complainants.  If true, these allegations could constitute a breach of fiduciary duty.  While it is unclear what damages flow from that alleged conduct cross-defendants are sufficiently on notice of the claim against them to frame the issues for discovery.   

 

Amy Hayes still fails to allege facts sufficient to constitute separate causes of action for constructive fraud (first cause of action) and intentional misrepresentation (fourth cause of action).  Amy Hayes did not actually sign the agreement, but sues in her capacity as Wayne Hayes’ spouse and part owner of the shares that are the subject of that agreement.  To the extent her claim for constructive fraud arises from the same facts that give rise to the cause of action for breach of fiduciary duty, it appears duplicative of that cause of action.  As to the cause of action for intentional misrepresentation, Amy Hayes does not allege facts sufficient to constitute a cause of action.  She does not show how these claims can be amended, so leave to amend these claims is denied without prejudice to promptly seeking leave to amend if additional facts are discovered that would support these claims.

 

Motion 2    As to the motion to strike, it is mostly duplicative of the demurrer and, therefore, is moot in light of the ruling on the demurrer, and also raises issues that could have been, but were not, raised in connection with the motion to strike the initial cross-complaint. Cross-defendants do not establish any of the allegations in the First Amended Cross-Complaint are “irrelevant, false, or improper” pursuant to Code of Civil Procedure section 436(b).   Cross-complainants to give notice.

 

 

12

16-839838  Zughni vs. Aminpour

Motion 1

 

The Motion to be Relieved as Counsel of Record for plaintiff Aska Sakan, Inc. is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to file and serve the required proposed order for this motion.  

 

Motion 2

 

The Motion to be Relieved as Counsel of Record for plaintiff Abdurrezag Kaal is CONTINUED to October 6, 2017 at 1:30 p.m. in Department C-11 for moving counsel to: (1) confirm plaintiff Kaal’s current address and to serve Kaal at that address and (2) file and serve the required proposed order for this motion.

 

Moving counsel to give notice.