DEPARTMENT C33 LAW AND MOTION

 Judge James L. Crandall

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If counsel wish to submit on the tentative ruling, please call the Court Clerk (657-622-5233) to notify the Court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling. If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the Court’s tentative ruling.

 

PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.

 

The Orange County Superior Court has implemented administrative orders, policies, and procedures noted on the Court’s website to address the limitations and restrictions presented during the COVID-19 pandemic at Civil Covid-19. Due to the fluid nature of this crisis, you are encouraged to frequently check the Court’s website at https://www.occourts.org/ for the most up to date information relating to Civil Operations. 

 

APPEARANCES:  “Unless otherwise ordered by the Court, all Unlimited and Complex proceedings will be conducted via telephonic appearance through CourtCall with each party/attorney having the option to appear by CourtCall video if the [Court], in [its] discretion, permits a video appearance instead of an audio appearance.”  Based on Orange County Superior Court Third Amended Administrative Order No. 2020/06, paragraph 12(c), the Court requests that the parties appear by way of CourtCall.     If a party is unable to appear by way of CourtCall, please contact the Court Clerk.  Please see, Civil Limited Unlimited & Complex Appearance Process at:

 

·         Civil Covid-19;

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020); and

 

·         Third Amended Administrative Order No. 20/06.

 

All appearances will be telephonic through CourtCall.  Contact CourtCall at 888-882-6878 or CourtCall.  Requests for fee waivers may be submitted to CivilSRL@occourts.org or the drop box outside the Central Justice Center courthouse

 

COURT REPORTERS:  Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·         Civil Court Reporter Pooling; and

 

·         For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

 

PUBLIC ACCESS:  The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129895#) and PIN for this Department (12129895#). The public will be able to listen, but not participate in the proceedings.  The public access number and the access code for a particular unlimited civil courtroom can be obtained at:

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020)

 

Video CourtCall is now available.

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: July 30, 2020 - NOW AT 10:00 a.m.

 

#

Case Name

Tentative

1

Dallal vs. Stellar Capital, Inc.

 

30-2015-00778704

Motion to Be Relieved as Counsel of Record filed by Counsel for Defendant, Timothy White

 

Attorney Timothy White seeks an order relieving him as counsel of record for defendant/cross-complainant Stellar Capital, Inc. (“Stellar”).

 

A motion to be relieved as counsel of record must be served on the client via personal service, electronic service, or mail. (See Cal. Rule of Court (CRC) 3.1362(d).)  If served via mail, the accompanying declaration must state the service address is current.  (CRC 3.1362(d)(1)(A).)  

 

Here, the supporting declaration attests to personal service of the motion papers on the client. (White Dec., ¶ 3a.) However, the proof of service attests to service via mail. (See ROA 320.) If the client was served via mail, counsel must aver to the address being current or verified within the last 30 days. (CRC 3.1362(d)(1).) Attorney White’s declaration does neither.

 

A motion to be relieved as counsel must also be accompanied by a declaration using the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052) that states in general terms and without compromising the confidentiality of attorney-client relationship the basis for the motion and why consent was not possible under CCP § 284(1). (See CRC 3.1362(c).) 

 

While there is no explanation as to why consent was not secured, the accompanying declaration substantial complies with the rule by providing the basis for the motion. (White Dec., Attachment 2, ¶ 2-7.) 

 

Also, moving party is required to prepare a proposed order using the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (form MC-053), which must be lodged with the court with the moving papers. (CRC 3.1362(e). Counsel has failed to lodge and serve the proposed order.

 

Attorney White’s Motion to Be Relieved As Counsel of Record for Stellar is continued to August 20,2020 at 10:00 am.

 

Counsel may file proof of personal service and lodge and serve a proposed order no less than nine court days before the hearing date.

 

Moving party to give notice.

 

 

Future Hearings:

No future hearings

 

2

New Pride Corporation vs. Lee

 

30-2019-01096633

Motion for Change of Venue (Transfer) filed by Defendant Hee S Lee

 

The Motion to Transfer Venue brought by Defendant Hee Sung Lee, pursuant to C.C.P. §396b and C.C.P. §397, is DENIED.  

 

Per C.C.P. §395(a), “[i]f none of the defendants reside in the state…the action may be tried in the superior court in any county that the plaintiff may designate in his or her complaint…”

 

Here, all parties agree Defendant Hee Sung Lee resides in South Korea. (See ¶5 of FAC and ¶2 of Lee Declaration (attached to Motion to Transfer Venue)).  Consequently, per C.C.P. §395(a), Plaintiffs were entitled to select any county in California, to proceed with their action.  

 

Nonetheless, pursuant to C.C.P. §397(c) a Court may, on motion, change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” 

 

However, “a motion for change of venue on the ground of the convenience of witnesses will not be entertained when defendant has appeared by demurrer only and has not filed an answer.” (De Long v. De Long (1954) 127 Cal.App.2d 373, 374).  The Court in De Long expressly found denial of a Motion to Transfer Venue is proper, where the moving Defendant has not filed an Answer. (Id.).  

 

Similarly, here, Defendant has not filed an Answer to the Complaint and has appeared only through the filing of this Motion to Transfer Venue and a Motion to Dismiss.

 

Additionally, as noted by Plaintiffs, Defendant seeks a transfer of this action to South Korea; however, this Court has no authority to compel a South Korean Court to try Plaintiffs’ Complaint.

 

While C.C.P. §397 provides this Court with the authority to transfer this action to another California Court, and allow Plaintiffs to proceed with their Complaint therein, Defendant has cited no authority which indicates this power extends to foreign jurisdictions.

 

While Counsel has attempted to re-write the Motion within the Reply, as one brought pursuant to C.C.P. §410.30, “[i]t is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161).

 

Similarly, while Counsel for Defendant requests the Court interpret the initial Motion as a Motion to Stay or Dismiss, Defendant specifically noticed a Change of Venue Motion under C.C.P. §396b and made no reference to C.C.P. §410.30, within his brief.  Thus, the interpretation requested by Counsel is contrary to the plain language of the Notice and Motion.

 

Likewise, the Motion filed by Defendant offered no analysis which addresses the relevant concerns of a Motion to Dismiss, brought pursuant to C.C.P. §430.10.    

 

Based on all of the above, the Court considered only Defendant’s request to transfer venue pursuant to C.C.P. §396b and C.C.P. §397 and the same is DENIED. 

 

Plaintiffs’ request for costs and attorneys’ fees is likewise DENIED, as the request is unsupported by authority.  

 

“Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793). 

 

Defendant’s Request for Judicial Notice, submitted with his Reply, is DENIED as untimely.  “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538).

 

 

Future Hearings:

Motion to Dismiss: 8/30/20

MSC: 3/5/21

Jury Trial: 4/26/21

 

3

Peterson vs. Fernandez

 

30-2019-01103686

Motion to Compel Compliance with Subpoena for Production of Plaintiff's Psychotherapy Records filed by Defendants Fullerton Joint Union High School District, Izic Fernandez and Rudy Fernandez

 

The unopposed Motion to Compel Compliance brought by Defendants Fullerton Joint Union High School District, Izic Fernandez and Rudy Fernandez is GRANTED, pursuant to C.C.P. §2025.480 and C.C.P. §1987.1, to the limited extent that Children’s Hospital of Orange County is ordered to produce the records of Dr. Nicole Vincent and Dr. Grace Mucci, relating to Plaintiff Lunden David Peterson, dated after November 9, 2018 (the date of Plaintiff’s alleged injury) through to the present. (¶10 of Complaint). 

 

This production is ordered to occur within 15 days-notice of this order.

 

Initially, the Court finds the instant Motion was timely and accompanied by sufficient attempts to meet and confer, in compliance with C.C.P. §2025.480(b).  Per the Declaration of Gabriel Kontarovsky, Counsel attempted to meet and confer with both Plaintiff and the Custodian of Records for CHOC, prior to filing this Motion. (¶3-¶5 and ¶7 of Kontarovsky Declaration).  

 

Additionally, due to emergency orders issued during the Covid-19 crisis, the Motion was timely filed.   

 

Counsel’s Declaration demonstrates CHOC responded to Defendants’ subpoena on or about March 20, 2020. (¶3 of Kontarovsky Declaration and Exhibit B thereto).   On May 29, 2020, the Court issued its Third Amended Administrative Order No. 20/06, which states: “March 17, 2020 through May 22, 2020 were holidays for purposes of computing the time to file civil documents in court under Code of Civil Procedure sections 12 and 12a.”

 

Pursuant to C.C.P. §12a(a), “[i]f the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.”

 

Based on the above, all deadlines between March 17th and May 22nd were extended to May 23rd.  As the instant Motion was submitted for filing on May 22, 2020, it is timely.

 

Within this Motion, Defendants specifically seek to obtain Plaintiff’s mental/ psychotherapy records, pursuant to the first of three subpoenas dated January 24, 2019. (See Motion: 4:6-8; See also ¶2 of Kontarovsky Declaration and Exhibit A thereto). 

 

Of note, the relevant subpoena seeks Plaintiff’s medical records, which are protected by the constitutional right to privacy. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198).   Additionally, as noted by Defendants, Evidence Code §1014 establishes a psychotherapist-patient privilege; however, pursuant to Evidence Code §1016, an exception to this privilege exists where a patient places their mental or emotional condition at issue and a communication is relevant thereto.

 

“In determining whether one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure to private activities.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014). 

 

“An implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” (Id.). “Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy.” (Id.). 

 

Notably, “a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839). 

 

Here, Plaintiff’s discovery responses indicate Plaintiff attributes ongoing depression, mood swings, irritability and cognitive impairment to the alleged incident with Defendants. (¶6 of Kontarovsky Declaration and Exhibit E thereto, response to Form Interrogatory 6.2 and 6.3).

 

Among the doctors identified by Plaintiff as having treated these conditions are Doctors Nicole Vincent and Grace Mucci, of CHOC Children’s Hospital. (Id. at Form Interrogatory No. 6.4).  Plaintiff specifically indicates treatment will be ongoing with Dr. Vincent. (Id. at Form Interrogatory No. 6.7). 

 

The above sufficiently establishes the relevance of the records of Dr. Vincent and Dr. Mucci, after November 9, 2018 (the date of Plaintiff’s alleged injury).  (¶10 of Complaint).  Likewise, the above, establishes that Defendants’ need for the identified documents outweighs any remaining privacy right held by Plaintiff. 

 

Notably, the subpoena in question seeks records prior to the date of injury, as far back as January 1, 2015; however, Defendants offer no argument to support this production.  Similarly, while the Motion concludes with a request the Court order CHOC “to produce all records responsive to Defendants’ January 24, 2020 subpoena,” (Motion: 9:6-8), the Motion itself addresses only the relevance of the records of Dr. Vincent and Dr. Mucci. 

 

Additionally, the discovery responses provided by Defendants, indicate the subpoena is generally overbroad.  The subpoena seeks all of Plaintiff’s medical records from January 1, 2015 to the present; however, per Defendant’s evidence, Plaintiff has identified very specific and limited injuries.  (¶6 of Kontarovsky Declaration and Exhibit E thereto, responses to Form Interrogatories 6.2-6.4 and 6.7).

 

Rather than deny the Motion on the basis the subpoena is overbroad, the Court invokes its authority under C.C.P. §1987.1 and compels compliance, only, to the extent of compelling production of the records from Dr. Vincent and Dr. Mucci, dated after November 9, 2018.

 

 

Future Hearings:

MSC: 4/16/21

Jury Trial: 6/21/21

 

4

Goins vs. Glowaki Chiropractic, Inc.

 

30-2019-01077369

Motion to Quash Subpoena filed by Plaintiff Sophia Goins

 

Continued to 08/13/2020.

 

 

Future Hearings:

MSC: 12/11/20

Jury Trial: 2/16/21

 

5

ROUTE FOURE LLC vs. BURKHART

 

30-2020-01129185

Motion to Quash Discovery Subpoena filed by Brandon Burkhart and Canop Holdings, Inc.

 

This motion arises out of two, related cases relating to Route Four LLC’s purchase of a company known as Hydroponics, Inc. 

 

Hydroponics sold agricultural equipment to legal cannabis operations in California and elsewhere.  On 7/13/18, Route Four purchased Hydroponics, Inc.’s assets under an Asset Purchase Agreement (“APA”). 

 

In connection with the APA, Route Four entered into consulting agreements with Brandon Burkhart, the owner of Hydroponics, and Amberlee Rails, Burkhart’s sister and a former employee of Hydroponics.  

 

On 2/3/20, Route Four sued Burkhart, Rails and Hydroponics (now known and sued as Canop Holdings, LLC), alleging various breaches of the APA, including alleged breaches of non-compete and non-solicitation provisions.  Route Four v. Burkhart, Case No. 30-2020-01129185. 

 

Route Four alleged that Burkhart was using non-parties Luxx Lighting Co. and Athena Products, Inc. to compete with Route Four and hire away employees.  

 

Almost simultaneously (2/6/20), Burkart filed a separate breach of contract case, Burkhart v. Route Four, Case No. 30-2020-01130231 against Route Four, Kenneth Alston and Justin Pierce. 

 

Burkhart alleges Route Four et al. breached the monthly consulting fee agreement entered into in connection with the APA.  The two cases have been deemed related.  

 

Shortly after the actions were initiated, Route Four served subpoenas on Luxx and Athena in Burkhart v. Route Four.  The subpoenas sought documents relating to Luxx’s and Athena’s dealings with Burkhart and Rails, as well as financial and other information. 

 

Burkhart and Canop’s now seek to quash those subpoenas.  The Court notes that although the subpoenas were served in Burkhart v. Route Four, the motion to quash was filed in Route Four v. Burkhart. 

 

Burkhart and Canop argue that the requested documents are outside the scope of discovery, violate various privacy interests and include confidential and trade secret documents.  They ask that, if documents are to be produced, they will be produced pursuant to a protective order imposed by the Court.  

 

Burkhart and Canop’s theory is that any documents from Luxx and Athena are entirely irrelevant because Luxx’s and Athena’s assets were specifically excluded from the APA.

 

While it is true that Luxx’s and Athena’s assets were excluded from the purchase, the companies were not excluded from the non-compete and non-solicitation provisions of the APA (§§ 9.2, 9.3 and 9.4) or of Rail’s consulting agreement (§§ 1.2-1.4). 

 

Therefore, to the extent that the requests call for documents relating to the claim that Burkhart and/or Rails have been involved in efforts by Luxx and Athena to compete with Route Four and/or solicit Route Four’s employees and customers, the requested documents are relevant. 

 

Luxx and Athena also argue that certain of the requests call for trade secret documents.  They failed, however, to provide any evidence supporting the trade secret assertion. 

 

Luxx’s and Athena’s privilege arguments are equally unavailing. 

 

Some of the requests, however, lack particularity or are extremely overbroad.  The motion is well-taken as to those requests.  Accordingly, the Court rules as follows.

 

The motion to quash is GRANTED as to Requests No. 2, 11, 12, 14, 15, 16 and 20.  

 

The motion to quash is DENIED as to the remainder of the requests.  

 

In response to Request No. 1, Luxx and Athena are each ordered to produce any articles of incorporation, by-laws and meeting minutes prepared or in effect at any time from 1/1/18 to the present.  

 

In response to Requests No. 3, 4, 5, 6, 7, 8, 9, 10, 13, 17, 18 and 19, Luxx and Athena are each required to produce responsive documents for the period 7/23/20 to the present. 

 

Burkhart asks the Court to order the documents to be produced pursuant to certain protective order terms.  The Court grants that request and orders the parties to meet and confer and agree upon a protective order for submission to this Court.  The documents are to be produced within 10 days of that order being signed.  

 

Given the mixed results, the Court finds that an imposition of sanctions on either party would be unjust and both sides’ requests for sanctions are DENIED.  

 

Further, because of the confusion already engendered by the two, related actions (which arise out of the same transaction and involve overlapping parties), the Court SETS an OSC re: consolidation for August 27, 2020 at 1:30 p.m. in Department C33. 

 

 

Future Hearings:

MSC: 10/8/21

Jury Trial: 11/8/21

 

6

E Mortgage Capital, Inc. vs. Kowarsky

 

30-2020-01141373

Order to Show Cause re: Preliminary Injunction filed by Plaintiffs E Mortgage Capital, Inc. and Joseph N Shalaby

 

OFF CALENDAR – case dismissed with Request for Dismissal filed 07/28/2020.

 

 

Future Hearings:

No future hearings

 

7

Hoang vs. Irvine Sensors Corporation

 

30-2019-01053507

1. Motion to Be Relieved as Counsel of Record filed by Counsel for Defendant, Eric J Erickson and Jarad D Beckman

2. Motion to Be Relieved as Counsel of Record filed by Counsel for Defendant, Eric J Erickson and Jarad D Beckman

 

Attorneys Eric J. Erickson and Jarad D. Beckman’s (collectively, “Attorneys”) motion to be relieved counsel of record for Defendants Irvine Sensors Corp. and John Carson (collectively, “Defendants”) is GRANTED.

 

A motion to be relieved as counsel of record must be served on the client via personal service, electronic service, or mail. (See Cal. Rule of Court (CRC) 3.1362(d).) 

 

If served via mail, the accompanying declaration must state the service address is current.  (CRC 3.1362(d)(1)(A).) 

 

Having filed proof of service (ROA 67), the motion is GRANTED.

 

Attorneys will be relieved as counsel upon the filing of proof of service of the Court’s Order on this motion on Defendants and all parties.

 

Attorneys to give notice.

 

 

Future Hearings:

OSC re: Dismissal (C66): 3/24/22