TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

DO NOT CALL THE DEPARTMENT TO VERIFY IF YOU SHOULD APPEAR OR NOT.  PLEASE READ YOUR TENTATIVE FOR THE INFORMATION.

 

Date: 3/24/15

 

 

STARTING AUGUST 25, 2014, ORANGE COUNTY SUPERIOR COURT WILL NOT SUPPLY COURT REPORTERS FOR LAW AND MOTION CALENDARS.  PLEASE SEE THE COURT’S PUBLIC WEBSITE FOR INSTRUCTIONS IF YOU WISH TO HAVE A COURT REPORTER.

 

 

 

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Case Name

Tentative

 

 

 

1

Bonnie Kent vs Fin City Foods

(1) Motion to Disqualify Attorney of Record (2) CMC  

 

Tentative Ruling:   Plaintiff’s Motion to Disqualify Mr. Lucas as Counsel is DENIED.  

 

It does not appear Mr. Lucas ever represented Ms. Kent: instead it appears that he had in 2011 advised her late husband on what was evidently an entirely unrelated business matter.  (Kent Reply Decl. at ¶ 15 and Exhs. A & B.)  That is insufficient to warrant disqualification. (See e.g. Jessen v. Hartford Cas. Ins. Co., supra, 111 Cal.App.4th 698, 705, Khani v. Ford Motor Company (2013) 215 Cal.App.4th 916, 920.) Nor does Mr. Lucas’ current representation of FCF and Mr. Clark compel disqualification, as it appears that there is at present only a potential conflict between the two.  (See e.g. Havasu Lakeshore Investments, LLC v. Fleming (2013) 217 Cal.App.4th 770, 778.) It also appears that this motion may have been filed for an improper purpose.  (Id. at fn. 7.)

 

Defendants’ Request for Judicial Notice is GRANTED as to RFJNs 1, 2, & 6, and for Nos. 3, 4, 5 & 7, as to the fact that the subject documents were filed and their legal effect, but not as to the truth of matters asserted therein. Defendants’ evidentiary objections are OVERRULED.  Plaintiff’s evidentiary objections are also OVERRULED.

 

Defendants to give notice.

 

2

Conner vs Orange Coast Memorial

Motion for Summary Judgment and/or SAI  

 

Tentative Ruling(1-2) Off Calendar  – no hearing will be held.   Defendant Orange Coast Memorial Medical Center’s Motion for Summary Judgment is continued to 5-12-15, Dept. C13, at 2 pm.

 

“[I]n any medical malpractice action, the plaintiff must establish: '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' (Budd v. Nixen (1971) 6 Cal.3d 195, 200 ....)” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877 [22 Cal.Rptr.2d 819].)

(Hanson v. Grode (1999) 76 Cal. App. 4th 601, 606, as modified, Nov. 29, 1999.)

As is common with most medical malpractice motions for summary judgment, Defendant here focused its arguments on “standard of care” and “causation.” Both parties provided expert opinions regarding same. However, Defendant’s reply raises a new argument, i.e., that Plaintiff’s medical malpractice cause of action lacks merit because Plaintiff cannot establish the 4th element: “actual loss or damage resulting from the professional's negligence.”

 

Although in the reply Defendant points out the lack of damages in Dr. Lawrence’s declaration, this argument was not raised with sufficient clarity in the motion. To the extent Defendant mentioned “injuries” and “damages” in the motion, it was in the same sentence as “causation”—which was where the real argument was directed.

 

However, the Court and all parties have now been put on notice of the “injury” and “damages” (or lack thereof) issue. In Plaintiff’s Complaint she alleges brain injury as result of the medical malpractice pled therein. (Complaint¶12.) However, Plaintiff’s expert makes no mention of any injury to her brain, or injury at all. Plaintiff’s expert, Steven M. Simons, M.D., opined at ¶19 “Thus, to a reasonable degree of medical probability, Ms. CONNER was damaged vis-à-vis losing consciousness around noon on July 18, 2012 as a result of Orange Coast Memorial Medical Center’s failure to comply with the applicable standard of care.”

 

To obviate due process concerns, the Court will continue the motion for Plaintiff to address the arguments in the reply in a five page supplemental brief and submit any further evidence in support of said supplemental brief, to be served and filed by 5-4-15, 4 pm, personal delivery. The defendant will be permitted to file a two page response thereto, to be served and filed by 5-6-15, 4 pm, personal delivery. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308; see also Bacon v. S. Cal. Edison Co. (1997) 53 Cal. App. 4th 854.)

The Clerk is to give notice.

3

Dunbar vs Jerry Goldman

Motion to Dismiss  

 

Tentative Ruling:   The unopposed motion by defendants Jerry Goldman, Nancy Goldman, Gary Goldman, Deborah Goldman and H. Field’s & Sons Piano Corp., to dismiss Plaintiff’s complaint for failure to prosecute is granted.

 

This Court has discretion pursuant to Section 583.420(a)(2)(B) of the Code of Civil Procedure, and Rules 3.1340 and 3.1342 of the California Rules of Court, to dismiss a complaint for delay in prosecution if it is not brought to trial within two years after the action was commenced against the defendant.  Plaintiff’s complaint has been pending for more than four years, and Plaintiff has failed to prosecute the action. According to the evidence submitted in support of the Motion, as well as the court records, Plaintiff has not conducted any discovery and has not engaged in any settlement discussions with defendants.

 

In addition, Plaintiff’s failure to file a written opposition is construed as an admission the motion is meritorious. (CRC 3.1342(b).)

 

Moving Parties are to give notice.

 

4

Ford Motor Credit vs Zarate

Motion for Judgment on the Pleadings  

 

Tentative Ruling:  Plaintiff Ford Motor Credit Company, LLC’s unopposed Motion for Judgment on the Pleadings is GRANTED, without leave to amend.  Service was timely and good and no opposition was filed. 

 

Plaintiff’s unopposed RFJN of documents filed in this case and the court’s minute order is GRANTED. The court may take judicial notice of records in this case, and facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, § 452(d) and (h).)  Accordingly, the court may consider a party’s admissions or concessions which cannot reasonably be controverted. (Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989-990.)

 

In addition, “Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. [Citations.] Facts established by pleadings as judicial admissions ‘ “are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her.” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451.)

 

Here, the court finds Plaintiff has sufficiently established the existence of a binding contract between the parties, that Plaintiff did all or substantially all of the significant things that the contract required, that the conditions required by the contract for defendant’ performance (i.e., payment) has occurred, and that Defendant has failed to pay a total of $3,734.37.  In addition, the court finds Plaintiff has sufficiently established that the answer does not state facts sufficient to constitute as a defense to the complaint. 

 

Plaintiff is to submit a proposed judgment.

 

Moving Party is to give notice.

 

5

George vs Balboa Bay Club

(1) Motion to Further Responses to Form Irogs (2) Motion to Further Responses to Special Irogs (3) Motion to Compel Production (4) CMC  

   

Ruling(1-4) Off Calendar  – no hearing will be held.    

 

(3) MOTION OF DEFENDANT BBC TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION (SET ONE):   Defendant’s motion for an order compelling Plaintiff Steve George to provide further responses to Defendant's Request for Production of Documents (Set One) is GRANTED with respect to Request for Production No. 1 but the production of the prescription bottle shall be at made available for inspection at a defendant’s attorney’s office on a date and time mutually agreeable to by the parties. The motion is denied as to all other requests including monetary sanctions.  The court finds that the imposition of monetary sanctions would be unjust and that the plaintiff acted with substantial justification in providing the responses and production.

 

(1-2) MOTION OF DEFENDANT BBC TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) AND SPECIAL INTERROGATORIES (SET ONE):  Defendant’s motion for an order compelling Plaintiff Steve George to provide further responses to Defendant's Form Interrogatories (Set One) and Special Interrogatories (Set One) is GRANTED in part.  The motion is granted with respect to Special Interrogatory 1 and Form Interrogatories 12.1, 17.1 (concerning Requests for Admission 4, 5, 6, and 8) in so far as the Plaintiff has not provided contact information for the individuals or indicted that he does not have access to such information and has not provided the responses with corresponding subparagraphs so that the defendant can determine what information has been provided and what if any information is needed to be followed up with. 

 

The motion is denied as to all other requests including monetary sanctions.  The court finds that the imposition of monetary sanctions would be unjust and that the plaintiff acted with substantial justification in providing the responses.

 

6

Jung vs Hwang

Motion to Compel Answers to Special Irogs  

 

Ruling:  Off Calendar  – no hearing will be held.    Plaintiff/Cross-Defendant’s unopposed Motion to Compel Responses to Special Interrogatories, Set 1 is granted pursuant to Code of Civil Procedure section 2030.290. Plaintiff served the discovery here on 10-15-14. (See Exh. A attached to the motion.)  To date, Plaintiff has not received any responses.  Responses, without objections, are to be served within 20 days. Sanctions are warranted, but are reduced as Plaintiff will not need to prepare for or attend the hearing.   

 

Failure to respond to an authorized method of discovery is a misuse of the discovery process under C.C.P. §2023.010(d).  Sanctions may be imposed even if no opposition is filed.  (C.R.C. 3.1348(a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”].) 

 

Sanctions in the amount of $250 to be paid within 20 days. MP is to give notice.

 

7

Kohler vs Tom’s

(1) Demurrer to Amended Complaint (2) CMC  

 

Tentative RulingPlaintiff has alleged facts sufficient for pleading purposes to state causes of action for violation of the CLRA, the Song-Beverly Consumer Warranty Act, Business & Professions Code section 17200, Fraud and Violation of Vehicle Code section 11711.  The facts alleged put defendants on notice of the claims and allegations against them to frame the issues for discovery, and the pleading is not so uncertain that defendants cannot reasonably respond.  

 

The following facts are assumed to be true for purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA3d 593, 604.)  Plaintiff, an 80 year old woman, alleges she purchased a used vehicle from defendant Tom’s Truck Center, which defendant represented was being sold as a Certified Pre-Owned vehicle. (First Amended Complaint, ¶¶ 10, 15.)  At the time of the purchase, defendant Tom’s Truck Center failed to give Plaintiff a certification checklist, and concealed that the vehicle had been in a significant prior accident, had been used as a rental car and had been repaired and entirely repainted (¶¶ 18, 23), which Plaintiff later discovered only after taking it to an auto body shop.  Plaintiff alleges she would not have purchased the vehicle had she known the true facts.

 

The entire basis for defendants’ demurrer is that Plaintiff fails to attach to the First Amended Complaint the “window form” that is legally required to be displayed on every vehicle at the time of purchase, which Defendants argue would necessarily show whether or not the vehicle was sold as a Certified Pre-Owned, and what, if any, express warranties were provided.  Defendants argue Plaintiff was required to attach it, because it is part of the “Retail Installment Sale Contract” (the “Contract”) attached as Exhibit “1” to the First Amended Complaint (10/10/14 Errata).  First, contrary to Defendants’ contention, there is no indication from the Contract that suggests any part of it is missing, and Defendants fail to cite any authority that requires a plaintiff in this type of action to attach the window form to the Complaint.  As to written warranties, the Contract indicates that warranties may be provided by the seller separate and apart from the Contract. (See Contract, § 4.)  As to the window form, the Contract does state that the window form is a part of the contract. (§ 5.)  However, that section is entitled “Used Car Buyers Guide,” and Plaintiff has expressly alleges that the Defendants failed to provide her with a Buyers Guide. (First Amended Complaint ¶ 38.)  Nothing on the face of the First Amended Complaint, or the exhibits attached thereto, directly contradict Plaintiff’s allegation that the subject vehicle was sold as a Certified Pre-Owned vehicle with express warranties. 

 

Defendants are to give notice.

 

8

Lazo vs Pacificbanc

(1) Motion to Compel Answers to Special Irogs (2) Motion to Compel Production (3) CMC  

 

Ruling(1-3) Off Calendar  – no hearing will be held.

 

9

National Collegiate vs Huffman

Claim of Exemption -- Levy  

 

Ruling:   Off Calendar  – no hearing will be held.   The hearing on Plaintiff’s Opposition to Claim of Exemption by judgment debtor Darnell Smallwood is off calendar.  The property claimed by the debtor, Darnell Smallwood, to be exempt (money from checking account at American First Credit Union) being held by the Levying Officer is to be released. (Code Civ. Proc., § 703.580(f).)

 

This matter was continued from 2-24-15 because Plaintiff had not shown proof of service of the Notice of Hearing and Opposition to Claim of Exemption on judgment debtor Darnell Smallwood.  The Court ordered Plaintiff to serve the judgment debtor with a notice of continuance of the hearing not less than 10 days prior to the hearing.  No additional papers have been filed, and Plaintiff has not remedied the defect in service.

 

The Court Clerk is to serve this Order on Plaintiff and the Levying Officer.

 

10

Scilabs Nutraceuticals vs Luberski

Motion for Terminating Sanctions  

 

Ruling:  Off Calendar  – no hearing will be held.   CONTINUED to 5-12-15, Dept. C13, at 2 pm.   The Clerk is to give notice.

 

11

The Hale Family vs The City of San Clemente

(1) Demurrer to Answer (2) Motion to Strike Answer  

 

Ruling(1-2) Off Calendar  per MP – no hearing will be held.

 

12

TK Global Partners vs Wilder

(1) Motion to Quash Service of Summons (2) CMC

 

Ruling(1-2) Off Calendar  – no hearing will be held.    The Motion to Quash Service of Summons on First Amended Complaint, filed by defendant Thanomlarp Wilder, is DENIED

 

The summons at issue is on the First Amended Complaint (“FAC”), which names moving party personally in the pleading itself.  (Wilder Decl. Exh. 1; FAC ¶¶ 5, 7, 19, 36, 47, 48, and 58.) Moving party was also properly served by publication in her own name. (Opp Ex. 1.)  Any defect in the prior attempt to name moving party as a Doe in the original complaint is now irrelevant, as she was named in and duly served with the FAC.

 

Defendant Thanomlarp Wilder is to respond to the FAC within 15 days after service of notice of this ruling. (Code Civ. Proc. § 418.10(b).) 

 

(2) CMC is continued to 5-5-15, Dept. c13, at 8:45 am. 

Plaintiff to give notice.

 

13

William Jefferson vs County of Orange

Joinder  

 

Ruling:  Off Calendar  – no hearing will be held.

 

14

Young vs Holiday Inn

(1) Demurrer to Amended Complaint (2) CMC

 

Ruling(1-2) Off Calendar  as MOOT – no hearing will be held.  Amended Complaint filed on 3-12-15.

CMC is continued to 4-14-15, Dept. C13, at 8:45 am.