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: 3/3/15

 

 

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

Clayton vs Nespeca

(1) Motion to Strike Portions of Complaint (2) CMC

 

Ruling(1-2) Off Calendar  – no hearing will be held.   (1) Defendant’s unopposed Motion to Strike is GRANTED.  A history of reckless driving and violations for the same conduct alleged to have occurred here could be sufficient to state a punitive damages claim.  However, the claim here is unsupported by any actual facts about defendant’s alleged history of reckless driving and violations, and appears to be entirely conclusory.  Further, as Plaintiff has filed no opposition, she appears to have conceded that her punitive damages claims are without merit.  (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue.”)  The claims for specific sums are also improper under Code of Civil Procedure section 425.10(b).   Paragraphs 14(a)(2), 15 and the entire Exemplary Damages Attachment are thus stricken from the Complaint.

 

(2) CMC is continued to 4-13-15, Dept. C13, at 8:45 am. 

 

Moving Party is to give notice.

 

2

Comerica Bank vs Bermuda Triangle

(1) OSC re Sale of Dwelling (2) Motion for Leave to Intervene (2) (3) Motion -- Other

 

Tentative Ruling: (1) OSC re: Sale of Dwelling:  GRANTED.   The property located at 532 Haiber Way, Placentia, California shall be sold, pursuant to Code Civil Procedure section 704.780(b), and is subject to a homestead exemption in the amount of $175,000, pursuant to Code of Civil Procedure section 704.730(a)(3)(C).

 

Pursuant to Code Civil Procedure section 704.780(b), "[t]he court shall determine whether the dwelling is exempt.  If the court determines that the dwelling is exempt, the court shall determine the amount of the homestead exemption and the fair market value of the dwelling.  The court shall make an order for sale of the dwelling subject to the homestead exemption, unless the court determines that the sale of the dwelling would not be likely to produce a bid sufficient to satisfy any part of the amount due on the judgment pursuant to Section 704.800."

 

Here, the Court adopts the lower valuation offered by Plaintiff, in the amount of $685,000.00.   Similarly, deducting the lien owed to JPMorgan, in the amount of $574.45 and the homestead exemption in the amount of $175,000, more than sufficient funds exist “to satisfy any part of the amount due on the judgment.”  Thus, under Code Civil Procedure section 704.780(b), the property shall be sold.

 

Pursuant to Code Civil Procedure section 704.850 the levying officer shall distribute the proceeds of the sale in the following order: (1) $574.45 to JPMorgan; (2) $175,000 to Donna Runyon, pursuant to Code Civil Procedure section 704.730(a)(3)(C); (3) $289,621.63 to the Judgment Creditor, Comerica Bank; and (4) The remainder to Donna Runyon.

 

Additionally, Comerica’s RFJN is (a) granted as to the existence and denied as to the content of Exh’s J, N, O, P, Q, S, T and U; and (b) granted as to Exh’s C, D, F and E. Comerica’s supplemental request for judicial notice is granted.   Comerica’s supplemental request for judicial notice is granted as to 8-22-14 Acknowledgment.  Donna Runyon’s 10-31-14 request for judicial notice is granted as to Exh’s 2, 3, 4, 11, 12, 13 and 16 ; granted as to its existence and denied as to its content as to Exh’s 7-9; and denied as to Exh’s 1, 5, 6, 10, 14 and 15.   Donna Runyon’s 11-20-14 amended second request for judicial notice is granted as to No. 7, 8; is granted as to its existence and denied as to its content as to Nos. 2, 3, 4, 5, 6, 9 ; and denied as to No. 1.   Donna Runyon’s 2-2-14 request for judicial notice is DENIED, as irrelevant. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (overruled for other reasons in In re Tobacco Case II (2007) 41 Cal.4th 1257.)

 

Last, the Court SUSTAINS Objections Nos. 1-3 and 6-7 and OVERRULES Objections Nos. 4-5, with respect to the evidentiary objections submitted by Ms. Runyon on 1-28-15.

 

(2) Motion for Leave to Intervene:   The motion by Donna Runyon for leave to intervene to arrest and vacate the final judgment is DENIED. The court’s ruling to Comerica Bank’s request for judicial notice is as follows: GRANT as to Exh’s A, B, C, G, H, K, J, T, O, Q; GRANT as to the existence and deny as to the content of Exh’s D, F, I, M, P;  and DENY as to Exh R. The court rules as follows on Ms. Runyon’s “corrected” request for judicial notice: GRANT as to Exh’s 3 and 4; GRANT as to the existence of and DENY as to the content of Exh’s 1, 2 and 5; and DENY as to Exh’s 6 and 7.

 

The subject case was filed in 2009 and named Gordon E. Runyon, then Donna’s husband, as a defendant. Per the 8-6-09 proof of service, Mr. Runyon was personally served on 8-3-09 at what is now Donna’s home. Although they ultimately divorced, the dissolution judgment was not entered until 9-25-13, with resolution of division of their property via a settlement agreement.   (Exh. G.)  In other words, it appears Donna has been, or should have been, well aware of this litigation since August 2009.

 

The marital settlement agreement, at pp. 4:21 – 5:5 and Attachment A, which is part of the judgment of dissolution, identifies all community property of the marriage and does not identify any separate property of Donna during the marriage.  (Exh. G.)  Given that they were married during the pendency of this litigation and only had community property, it strains credibility to believe Donna was ignorant of this litigation and its possible adverse effect on their assets in the event any judgment was rendered against Donna.  

 

Prior to seeking leave to intervene and during the Runyon marriage, a motion for summary judgment was filed and granted against Gordon Runyon and other defendants, settlements were negotiated with other defendants, judgment entered and an abstract of judgment issued against Gordon Runyon.

 

This case is quite similar to the situation in Noya vs. A.W. Coulter Trucking, (2006) 143 Cal.App.4th 838, with probably what can be considered to be an even stronger fact pattern establishing Donna’s lack of any diligence in seeking leave to intervene and prejudice not only to Comerica, but also to the other defendants with whom Comerica entered into settlements if leave is granted to intervene.

 

It is also questionable that Donna has “standing” to intervene—she admits she is not a party to the litigation and her only involvement is that Comerica seeks to levy against her Placentia property and force its sale to satisfy the judgment against Gordon and co-defendants.  To the extent Donna seeks to direct how Comerica chooses to enforce the judgment and against whom, the request for leave to intervene is denied.

 

Arrest, set aside or vacate judgment:  The moving papers focus on alleged collusion in the various settlements with co-defendants and Comerica seeking an abstract of judgment only against Gordon Runyon.  

 

The Court notes Donna introduces a new legal theory in her reply: the court should issue a “marshaling” order to mandate that, Comerica must seek the funds it seeks from Donna from the other co-defendants.   First and foremost, this relief was not even mentioned in the moving papers, nor was it requested that the court issue a marshaling order in the notice of this motion.

 

For that reason alone, due process requires that the request for a marshaling order be rejected.

 

Second, it appears Donna’s reliance on a “marshaling order” is misplaced; Civil Code section 3433, cited by Donna applies this where two judgment creditors seek payment from one judgment debtor. The case cited by Donna on this issue, Shedoudy vs. Beverly Surgical Supply Co., (1980) 100 Cal.App.3d 730 involved two judgment creditors seeking payment from the same judgment debtor’s assets.  

 

Second, according to the record relied on by all, Comerica settled with the other defendants remaining in the case except Bermuda Triangle, which it dismissed without prejudice; there is no evidentiary or legal showing that the settlements were improper or invalid such that they can be overlooked, nor is there a showing that any or all of the co-defendants have sufficient funds “to complete satisfaction” to Comerica.  (Civ. Code, § 3433.)  Donna, who seeks this relief, bears the burden of offering sufficient evidence to support that a “marshaling order” is appropriate and viable under the relevant circumstances.  (Shedoudy, supra, at p. 737.)   Donna offers no evidence to support that this new theory can be properly implemented without denying Comerica what it is due from this litigation.

 

As to Donna’s claim that she is not a proper individual against whom property may be executed to satisfy the judgment against Gordon:   It does not appear that Donna, who concedes that the judgment was the result of a grant of summary judgment presumably against all co-defendants, is entitled, based on the authority she cites and the documents for which she seeks judicial notice to have the judgment vacated.

 

She offers no evidence until her reply, and then it is only offered via a request for judicial notice, with the majority of the documents identified not the proper subject of a “grant” of judicial notice as to their content.

 

Setting aside a security interest in community property does not cancel the liability of the community property to satisfy that obligation where liability was established, and the judgment lien attached, during the marriage, even though the property was later transferred to one spouse as her separate property in the dissolution.  (Lezine vs. Security Pacific Fin. Services, Inc., (1996) 14 Cal.4th 56, 71, 73-74.)

 

She has attached a copy of said dissolution judgment, wherein it is conceded that the only property held by the couple in their 24-year marriage at time of dissolution was community property—no separate property.  (Exh. 1 judgment, marital settlement agreement, 4:28 – 5:5.)   Per said settlement agreement, Gordon was to receive as his separate property an Island Packet Boat to be used as his primary residence, a pickup truck, two Corvettes, a Harley Davidson and an Acura. Donna received four parcels of real property, one of which was in Oregon, with an obligation to pay Gordon $3,000/mo for life.


(3) Motion for Assignment of Equalization Payments:  The Court exercises its discretion to DENY this Motion, as it appears the judgment owed to Plaintiff will be paid in full, pursuant to the accompanying Order of Sale, such that Assignment is unnecessary. (Code Civ. Proc., §708.510(a).)

 

Additionally, the Court OVERRULES all objections to the RFJN and GRANTS the same, with the limitation that the Court does not take judicial notice of the truth of any hearsay statements included therein. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

 

Further, the Court SUSTAINS Objections Nos. 1-3 to the Declaration of Attorney Boice.

 

3

EGumball, Inc vs Lozano

(1) Demurrer to Complaint (2) Motion to Strike (3) CMC

 

Ruling: (1-3) Off Calendar  – no hearing will be held.   Notice of Settlement filed.

 

4

Elsbernd vs Balboa Apartments

Motion for Summary Judgment and/or SAI

 

Tentative Ruling  The Motion by Rondell Homes, Incorporated, is DENIED.  Defendant did not negate all theories of liability alleged by the plaintiff in her complaint and, therefore, did not meet its initial burden on summary judgment.  (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 945; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715–718 [summary judgment improper in slip and fall case where motion failed to address all of the multiple theories of liability alleged by plaintiff]; Cox v. State of California (1970) 3 Cal.App.3d 301, 310 [“‘a plaintiff who has pleaded a cause of action on either of two theories will not be subject to defeat by summary judgment because the defendant has established by an uncontradicted affidavit that one of the two theories (but not necessarily the other) cannot be established’”].) 

 

Here, Defendant failed to negate Plaintiff’s theory that the wood used to separate the concrete slabs where she fell was deteriorated and contributed to her fall.  Instead, Defendant addressed solely the issue of whether the elevation change is a trivial defect as a matter of law.

 

In her complaint, Plaintiff’s theory as the cause of her injury was not simply due to a change in elevation between the concrete slabs and the wood separator.  Rather, Plaintiff alleged as follows on page 4, paragraph 1, of her Complaint:

 

“. . .The dangerous and defective condition consisted of a poorly maintained walking surface with deteriorated wood slabs, thereby creating and maintaining a dangerous and defective walking surface and tripping hazard.  Defendants, and each of the, failed to provide adequate lighting in the area, failed to adequately warn of said danger and risk of harm, failed to otherwise make its property safe. . . .” 

 

(Emphasis added.)

 

In the Motion, Defendant and its expert, Mr. Tyson, assumed that Plaintiff attributes her fall solely to the elevation change.  However, Plaintiff did not (at least in her deposition testimony submitted by Defendant with the motion) limit the theory of causation to an elevation change.  Plaintiff testified that her “right shoe, the right side of it fell inside the wood plank or crack. . . .” (Ex. “6” to Gibbs Decl. [Elsbernd Depo., 13:15-16].)  When asked specifically how she fell, Plaintiff testified that her she “went inside the wood and [her] foot hit the cement.”  Plaintiff further testified she created a “crack” in the wood when she fell. (Id. at 16:4-7, 17:3-11.)

 

A determination as to whether the trivial defect doctrine applies to bar liability for a slip and fall like the one experienced by Plaintiff “does not rest solely on [a purported defect's] size . . . .” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) A court must also “consider[ ]all of the circumstances surrounding the accident that might make the defect more dangerous,” including “whether the walkway had any broken pieces or jagged edges and other conditions,” “whether there was debris, grease or water concealing the defect,” and “whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect.” (Ibid.)  Defendant failed to introduce any evidence to negate Plaintiff’s theory that other factors (i.e., the condition of the wood) contributed to the fall.

 

Defendant also is not entitled to summary adjudication because (1) Defendant failed to comply with CRC 3.1350, subdivision (b), by setting forth in the notice of motion and separate statement “the specific cause of action, affirmative defense, claims for damages, or issues of duty” to be adjudicated, and (2) the sole issue raised in the Motion regarding whether the height of the concrete slabs was trivial does not dispose of an entire cause of action or issue of duty given Plaintiff’s allegation that deteriorating wood contributed to her fall.

 

Since defendant did not meet its initial burden on summary judgment, the burden did not shift to plaintiff to produce admissible evidence showing the existence of a triable issue of fact as to the complaint.  (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

 

Rulings on Plaintiff’s Evidentiary Objections:

 

Sustained as to Objections 6, 7 and 8 only, and otherwise overruled.  Plaintiff’s evidentiary objections fail to comply with Rule 3.1352 of the California Rules of Court, by objecting to statements made by Defendant in its Separate Statement, not to specific evidence, and to multiple pieces of evidence within each objection.

 

Moving Party is to give notice.

 

5

George vs Balboa Bay Club

(1) Demurrer to Complaint (2) Motion to Strike (3) CMC

 

Tentative Ruling (1) Demurrer:  The demurrer is sustained in part and overruled in part. 

 

First COA (Violation of Unruh Civil Rights Act): Demurrer is sustained with leave to amend because plaintiff does not plead facts which establish he is entitled to the protections afforded by the Unruh Civil Rights Act.  Plaintiff alleges he had a broken arm and was under the influence of prescription pain medication when he was served alcohol.  But Plaintiff has not presented any authority to support a determination that such a condition qualifies for protection under the Unruh Civil Rights Act. 

 

Second and Third COAs (Breach of Contract - Membership Agreement and Mooring Agreement):    Demurrer overruled.  These COAs allege sufficient facts to support the breach of contract claims which must only be pled to apprise defendant of the allegations against them such as to allow them to present a defense.  Specificity is not required. 

 

Fourth and Fifth COAs (Breach of the Implied Covenant of Good Faith and Fair Dealing):  Demurrer overruled. These COAs   are proper as pled.  Plaintiff has alleged the existence of contracts between himself and the defendants, and the agreements are properly pled.  This is exactly the situation where breach of the covenant is to be applied.  Plaintiff has pled the elements for breach of contract(s) but if there is a finding that the terms of the agreements are not breached by the conduct alleged, the breach of the implied good faith covenant causes are pled in the alternative.  As such, if no term of the contracts is found to have been breached, the plaintiff can seek to show that defendants breached the purpose of the contracts in bad faith, causing damage to plaintiff.

 

Sixth and Seventh COAs (Intentional Interference with Contract - Membership Agreement and Mooring Agreement):   Demurrer overruled.  Plaintiff alleges facts which support each of the elements of these COAs.  Defendants argue the COAs are improperly pled because the plaintiff alleges each named defendant was the agent of each remaining defendant and in doing the things alleged in the FAC, was "acting within the course, scope, purpose, and authority of said agency and employment”, that International wholly owns and is the parent entity of the Club, that Eagle is the co-owner and co-manager of the Club, that PHGV is the co-owner and co-manager of the Club, that Pickup is the Chief Executive Officer of the Club, that Martin is the President of the Club, that Moody is a member of the board of managers of the Club or, that Weiner is a member of the board of managers of the Club necessarily negates the plaintiff’s ability to pled these causes of action.  Case law offered by defendants supports a finding that a contracting party cannot be held liable in tort for conspiracy to interfere with its own contract but does not support a finding that these defendants are not subject to such liability because they are agents, employees, or representatives of the contracting party defendant (i.e. the Club).  No facts are pled in the complaint which support a finding at a demurrer stage that the defendants conduct was being done on behalf of the contracting party.  

 

Eighth COA (Defamation):  Demurrer sustained with leave to amend.  The facts do not support the cause as currently pled. Although plaintiff need not allege the exact words, the substance of the alleged defamatory statements and surrounding circumstances must be pled with particularity.  Plaintiff has not alleged with specificity who made the defamatory statements that he was a “drunk, an embarrassment or that he got into a fight when he did not” or to whom the statements were made. 

Ninth COA (Declaratory Relief):  Demurrer overruled. This COA alleges facts which support the claims.  Specifically, the plaintiff alleges Defendants have banned Mr. George from the public spaces at the Club. (Complaint ¶ 38.)  The plaintiff seeks to address an actual controversy which is allegedly continuing.   Such allegations go beyond the allegations in the other causes and thus, the cause is not duplicative.  

 

Tenth COA (Injunctive Relief):   Demurrer sustained without leave to amend.  It is well established that injunctive relief is a remedy and not a cause of action.  (Guessous v. Chrome Hearts, LLC (2009)179 Cal. App. 4th 1177, 1187.) 

 

(2) Motion to Strike: The motion to strike punitive damages and special damages is granted with leave to amend.  Neither the requests for punitive or special damages are supported by sufficient facts.  Punitive damages may be recovered only where it is shown that the defendant was guilty of "oppression, fraud, or malice." (Civ. Code, §3294(a).)  Here, the plaintiff has not specified which defendants did what to support the request for punitive damages against them.  The Court will allow defendant the opportunity to amend the complaint to allege facts to support the claim for punitive damages. 

         

Specific facts which are said to give rise to special damages must be pleaded in detail and with certainty." (5 Witkin Cal. Proc. (5th ed. 2008) Pleading § 934.)  Plaintiff argues the damages are based upon the defamation cause of action.   While it is true libel or slander is actionable per se and general allegations of damages are sufficient for an award of injury to reputation, humiliation, and emotional distress, (Civ. Code ¶ 48a(4)(a)), special damages  for loss of employment or business opportunities must be pled with specific facts.

 

Plaintiff has failed to allege specific facts giving rise to these special damages.  The allegations do not set forth facts to show the requested special damages sought were the proximate result of certain of the defendant's alleged acts or omissions.  The Court will grant the motion to strike the plaintiffs prayer for special damages but grant plaintiff leave to amend.

 

6

Hagopian vs Merit PM

(1 Motion for SLAPP (2) CMC

 

Tentative Ruling Defendants The Summit Community Association and First Service Residential’s anti-SLAPP motion is DENIED. 

 

First, Defendants have failed to establish that letters issued by the Board of Directors to Plaintiffs constitute statements made in a public forum.  The cases cited by Defendants (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, and Silk v. Feldman (2012) 208 Cal.App.4th 547, 551) merely find that statements made during a homeowner’s association’s board of director’s meetings, community newsletters, and letters sent by a member to the other members of the homeowner’s association that is critical of a director’s action, constitute a “public forum.”  Here, the subject letters issued by the Board of Directors were not issued to community members at large.  Rather, they were letters issued directly to Plaintiffs with respect to the issues and circumstances surrounding the trees and Plaintiffs’ lawn.  Therefore, Defendants have failed to establish that the letters issued by the Board of Directors constitutes a “public forum.”

 

Second, Defendants have failed to establish that the alleged statements involve issues of public interest.  “‘[M]atters of public interest ... include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.’” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.)  Here, it is entirely unclear how the alleged damage of the trees allegedly caused by Plaintiffs and/or Plaintiffs’ lawn allegedly needing maintenance is a matter of public issue.

 

Third, “it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies, and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 188.)  Here, the gravamen and principal thrust of the breach of contract, negligence, and negligent infliction of emotional distress causes of action arises from Defendants’ purported failure to conduct a proper investigation of the damage to the trees and arbitrarily going after Plaintiffs.  Defendants have failed to meet their initial burden of establishing that the alleged failure to conduct a proper investigation is protected activity.  Therefore, the court finds that the gravamen and principal thrust of the First Amended Complaint does not arise from protected activity.  The arguably protected activity (i.e., statements made during the board meetings and statements made in anticipation of litigation) are merely incidental to the COAs alleged in the FAC. 

 

Accordingly, the court finds Defendants have failed to meet their initial burden of establishing that the act underlying the causes of action fits one of the categories spelled out in section 425.16, subdivision (e).  The anti-SLAPP motion is therefore DENIED.

 

Sanctions will not be awarded by the court.  Plaintiffs’ request for sanctions is denied because the court finds that the anti-SLAPP motion was not frivolous (i.e., totally and completely without merit) or solely intended to cause unnecessary delay. 

 

Moving Parties are to give notice.

 

7

Ho vs Bank of America Corp.

Motion for Leave to Amend

 

Ruling:  Off Calendar  – no hearing will be held.   Matter heard on 2-24-15.

 

8

Lyles vs Ross Stores Inc.

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

 

Ruling: (1-3) Off Calendar per MP – no hearing will be held.   (4) CMC is continued to 3-26-15, Dept. C13, at 8:45 am.

 

9

Pickard vs California TD Specialists

Motion to Be Relieved as Counsel of Record

 

Ruling:  Off Calendar  – no hearing will be held.   Motion by attorney Joseph R. Manning, Jr., Esq. to withdraw as counsel of record for plaintiff Daniel Lee Pickard is CONTINUED to 4-14-15, Dept. C13, at 2 pm for Moving Party to serve Plaintiff with notice of continuance and, if Plaintiff is now homeless, service is to be effectuated in accordance with CRC Rule 3.1362(d) and Code of Civil Procedure section 1011(b) by “delivering the notice or papers to the clerk of the court, for that party” if necessary.

 

MP to give notice.

 

10

Raynor vs Midwest Capital

(1) Motion for Leave to File First Amended Complaint (FAC) (2) CMC

 

Ruling: (1-2) Off Calendar  – no hearing will be held.   (1) Plaintiff Anthony Raynor’s unopposed Motion for Leave to File a FAC is GRANTED.  The FAC is deemed filed. Plaintiff is to serve the five (5) individual defendants with the FAC and file proof of service by 3-17-15, 4 pm.   

 

(2) CMC is continued to 4-17-15, Dept. C13, at 8:45 am.

 

Moving Parties are to give notice.

 

11

Schulz vs Krispel

(1) Motion to Permit Inspection of Property (2) CMC

 

Ruling:   (1-2) Off Calendar  – no hearing will be held.   The Court is inclined to grant the motion to compel Plaintiff to permit inspection of his computers and cellular telephones; however, the Court will CONTINUE the motion and CMC to 3-24-15, Dept. C13, at 2 pm, for the parties to submit a 3 page joint statement as to the process/methodology and parameters to be used to be employed in the inspection and to submit proposed orders within 5 days of the continued hearing date.

 

There is clearly “good cause” as required by Code of Civil Procedure section 2031.310(b) for production of the computers and cell phones in this case. Whether Plaintiff is in possession of child pornography is directly relevant to Defendant’s defense to the 5th and 6th COAs for Slander per se that his statements were true.  (See Carver v. Bonds (2005) 135 Cal. App. 4th 328, 344-45.)

 

The slander is that Plaintiff is in possession of child pornography-- a crime, as both parties agree pursuant to Penal Code section 311. It is irrelevant that there was an accusation of child pornography watching at work on a work computer. The gist of the defamatory statement is possession and viewing of child pornography; that Plaintiff is a criminal because he possesses child pornography.  The slander does not arise because Defendant was accusing Plaintiff of doing something he should not do at work (no matter how much Plaintiff tries to artificially limit the scope of the slander).  Rather, the slander arises because Defendant was accusing Plaintiff of doing something criminal and being in possession of something criminal. Therefore, Defendant has a right to inspect computers and cell phones (work, and personal alike) that may establish a defense to the defamation cause of action, i.e., truth.

 

Sanctions are denied as unnoticed in notice of motion.  (Code Civ. Proc., §2023.040.)

 

MP is to give notice.

 

12

Zwierlein vs Glazer

Motion for Summary Judgment and/or SAI

 

Ruling:  Off Calendar  – no hearing will be held.  Continued to 4-7-15, Dept. C13, at 2 pm.