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.

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.

 

Date: 11/18/14

 

 

 

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Case Name

Tentative

 

 

 

1

Anaheim Arena vs Certain Underwriters

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

 

Ruling:  (1-3) Off Calendar – no hearing will be held.    CMC rescheduled to 11-18-14, Dept. C13, at 8:45 am.

 

2

Brugman vs Fountain Care Center

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

 

Ruling:  (1-3) Off Calendar as MOOT – no hearing will be held.  First Amended Complaint filed 10-29-14.   CMC is continued to 1-20-15, Dept. C13, at 8:45 am.

 

3

Chan vs Haroutoonian

(1) Motion for Terminating Sanctions (2) TSC

 

Ruling:     The Court schedules for hearing on December 16, 2014, at 2:00 p.m., in Department C13, the following matters: (1) Defendants/Cross-Complainants’ objections to Report No. 4 of Discovery Referee and Proposed Order, and (2) Plaintiff and Cross-Defendants’ objections to Report No. 5 of Discovery Referee and Proposed Order.

 

Defendants’ Motion for Terminating and Other Sanctions is continued to the same date and time pending recommendation from the Discovery Referee as to whether Plaintiff/Cross-Defendants are in non-compliance with the 7-1-14 Order.  The Court refers that issue to the Discovery Referee.  The Discovery Referee is in the best position to determine whether and to what extent there is non-compliance. With the exception of the boxes located in Hong Kong (addressed below), Defendants are to provide the Discovery Referee with a Separate Statement specifying the categories of responsive documents that Defendants contend Plaintiffs have failed to produce, with a reference to the underlying Document Request to which the documents are responsive and the person or entity Defendants contend have possession, custody or control of such documents.  In response, Plaintiff/Cross-Defendants are to provide specific information about whether the categories of documents identified by Defendants have been produced, and if so, when and by which party.  If not, Plaintiff/Cross-Defendants are to explain why such documents have not been produced.   

 

With the exception of the boxes in Hong Kong, it is unclear from the record whether there are any categories of documents remaining that Plaintiff/Cross-Defendants have not produced pursuant to the 7-1-14 Order.  Defendants did not file a Separate Statement with the Motion as required by CRC 3.1345(a)(7).  Also, Plaintiff represents in the Opposition that the balance of the responsive documents (other than the documents contained in the boxes in Hong Kong) have all been produced, including documents from TTGlobal produced by hand to Defendants’ counsel upon entry of the Protective Order on 10-9-14.  Plaintiff contends the documents sought from Ms. Lam, which is the subject of Report No. 5, have already all been produced by Plaintiff/Cross-Defendants, who have possession, custody and control of the responsive documents. 

 

As to the 1,200 boxes in Hong Kong, the Court is inclined to deny Defendants’ Motion for Sanctions.  Defendants have failed to show Plaintiff’s refusal to ship the boxes constitutes a willful failure to comply with the 7-1-14 Order.  The 7-1-14 Order did not specify whether the responsive documents were to be produced in California or China and Plaintiff raised legitimate issues relating to the logistics of the production of these boxes with the Discovery Referee, and has made the boxes available for Defendants’ inspection and copying. 

 

The Court is inclined to overrule Defendant’s objections to Judge O’Brien’s Report No. 4, which appears to set forth a reasonable procedure for the inspection of the boxes in Hong Kong. 

 

Finally, the Court is inclined to overrule Plaintiff’s objections to Report No. 5, and order the relief sought as well as the recommended monetary sanctions.

 

Defendants are to give notice.

 

4

CMRE Financial Services vs Kinn

Claim of Exemption – Wage Garnishment

 

Tentative Ruling:     The Court notes a judgment debtor may make a claim of exemption as to wages to be garnished by filing with the levying officer [here, the L.A. County sheriff’s department] the completed Claim of Exemption (Judicial Council Form WG-006), with an attached and completed Financial Statement (Judicial Council Form WG-007/EJ-165).  (Code Civ. Proc., § 706.105(b)(1), (2).)

 

The levying officer, in turn, must “promptly send to the judgment creditor” “by first class-mail, postage prepaid”: copies of the claim of exemption and the financial statement, along with a notice of claim of exemption.  (Code Civ. Proc., § 706.105(c) (1)-(3).)

 

If the judgment creditor opposes the claim of exemption and seeks a hearing on the claim, the judgment creditor must, within 10 days after the mailing of the notice of claim of exemption, file with the levying officer, a notice of opposition to the exemption and file with the court a notice of motion for an order determining the claim of exemption.  (Code Civ. Proc., § 706.105(d), (e).)  The court must then set a hearing on the motion no later than 30 days from the date the notice of motion was filed, absent a showing for good cause for continuance.   (Code Civ. Proc., § 706.105(e).)

 

The judgment creditor must serve, in conformance with Code of Civil Procedure section 1005(b) (no less than 16 court days prior to the hearing), a notice of the hearing and the notice of opposition to the claim of exemption on the judgment debtor and, if requested, on said party’s counsel and serve notice of the hearing on the levying officer.  (Code Civ. Proc., § 706.105(d).)   After the levying officer receives the notice of hearing and before the hearing date, the levying officer must file the claim of exemption and the notice of opposition to the claim of exemption with the court.  (Code Civ. Proc., § 706.105(e).)

 

Here, the judgment creditor, apparently of its own accord, filed notice of opposition to the claim of exemption on 8-26-14.   The only document the court lacks is judgment debtor Kinn aka Kim’s claim of exemption, which should have attached a financial statement.

 

Based on the procedure noted above, the levying officer/sheriff’s department has the original claim and must file it with the court before the hearing.  Judgment creditor’s notice of hearing on claim exemption indicates it was served by mail on judgment debtor (at an address not previously identified in the file) and the levying office, which is the L.A. County Sheriff’s department.

 

The claim of exemption with the financial statement attached is an indispensable document which the court must have before making any determination as to the merits thereof and what amount, if any, of judgment debtor’s wage should be garnished.

 

As of 11-17-14, the claim of exemption is not on file.

 

If the claim of exemption is filed as of the hearing date, the Court notes the maximum portion of the judgment debtor’s wages which may be garnished via a nonsupport withholding order depends on the interval at which the debtor is paid (Code Civ. Proc., § 706.050(a)); the total amount of the debtor’s “disposable income”-amounts required to be withheld by law, (Code Civ. Proc., § 706.011(a)); and the amount “necessary for support” of the judgment debtor and his/her family.  (Code Civ. Proc., § 706.051(a), (b).)

 

The total withheld for the judgment creditor cannot exceed 50 percent of the employee’s weekly disposable earnings if the employee supports a spouse or dependent child; and 60 percent if the judgment debtor does not support a spouse or dependent child. (15 U.S.C. § 1673(b)(2).)

 

Obligations to pay attorney fee orders/awards under the Family Code cannot be claimed in calculating the exemption for family support.  (Fam. Code §§ 2030, 3121, 3557.)

 

In making the determination, the court must take into account all income available to the debtor and his/her family. (Code Civ. Proc., § 703.115.)

 

Absent “changed circumstances”, a judgment debtor may only make one claim of exemption.  (Code Civ. Proc., §706.105(a).)

 

Counsel should be prepared to update the Court on the status of this proceeding at the hearing. 

5

Coastal Heart vs The Lal Law Firm

(1) Motion to Stay AAA Proceeding (2) Motion to Compel Arbitration (3) CMC

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  CONTINUED to 12-16-14, Dept. C13, at 2 pm.

 

6

Comerica Bank vs Bermuda Triangle

OSC re Sale of Dwelling

 

Ruling:  Off Calendar – no hearing will be held.  The Court finds good cause to CONTINUE this hearing to 12-9-14, Dept. C13, at 2 pm.   The Court notes Donna Runyon, in addition to opposing the subject motion, also challenges the entire judgment rendered by the court in this matter, via an 8-4-14 motion to strike costs/fees, which is set for hearing on 12-2-14, and an 8-4-14 motion to intervene and “arrest or vacate final judgment”, which is set for hearing on 12-9-14.

 

If relief is granted on either of the above motions, it may well affect this motion.

 

The Court also notes Donna has offered no evidence to support a homestead exemption exceeding $75,000.  The court will inquire whether Donna agrees that the proper amount is $75,000. If she does not agree, she should notify the Court no later than by 11-24-14, 4 pm, so the Court may set a briefing schedule to receive evidence supporting any higher demand.

 

7

Gemmell vs Madden

(1) Petition to Confirm Arbitration Award (2) Cross-Petition to Correct and Vacate Arbitration Award

 

Tentative Ruling:     Petitioner’s Petition to Correct the Award, and Respondents’ Petition to Vacate or Correct the Award are each DENIED.  The Court lacks jurisdiction to vacate or correct the award as the instant petitions were filed 8 months after the stated dates of service of the arbitrator’s award.  (Code Civ. Proc., §1288, §1288.2; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1202, 1210-11; Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 746.)

Petitioner’s timely Petition to Confirm the Award is granted.  (Code Civ. Proc., §1286, §1288; Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 746.)

Petitioner is to give notice. 

 

Plaintiff Paul Gemmell’s Petition to Correct and Confirm Arbitration Award, and Defendants’ “Objection” [seeking to also correct the award] are denied as untimely. The petition must be filed at least 10 days but not more than 100 days after the date that the award was served on the petitioner. (Code Civ. Proc., §§ 1288, 1288.4; Knass v. Blue Cross of California (1991) 228 Cal. App. 3d 390.) However, where a petition to confirm was filed, the response seeking to vacate or correct the award must be filed within 10 days after service of the petition (Code Civ. Proc., § 1290.6) but not later than 100 days after service of the award (Code Civ. Proc., § 1288.2).

Here, although the Plaintiff’s Petition claims the Award was served on 9-25-13 (Petition, ¶9), there is no evidence of the service date. Rather, it appears the award was faxed on 9-20-13 (Petition, attachment 8(c)). In either case, the Petition is untimely as this motion was not filed until 3-5-14, which is 165 or 161 days after the award was served. The defendants’ “Objection” was filed on 3-17-14 which is also more than 100 days after service of the award, and therefore untimely as well.

A party with a reasonable excuse for failing to comply with the 100-day time limit for seeking correction or vacatur of an arbitration award may obtain relief in a trial court under the statute (Code Civ. Proc., §473(b), allowing relief for mistake, inadvertence, surprise, or excusable neglect; see Eternity Investments, Inc v. Brown (2007) 151 Cal.App.4th 739.) Here, no such motion has been made or relief requested.

 

8

Hagopian vs Merit

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

 

Ruling:  (1-2) Off Calendar as MOOT – no hearing will be held.  First Amended Complaint filed 9-25-14.

 

9

Kaneshima vs Bui

(1) Motion for Terminating Sanctions (2) CMC

 

Ruling:  (1-2) Off Calendar  – no hearing will be held.   (1)  Motion for Terminating Sanctions is DENIED, as Ms. Hoang’s knowledge of these proceedings is unclear and Mr. Kelly had been obligated to act on her behalf.  Given the same, the Court is not positioned to find that Ms. Hoang has failed to participate, in a manner which justifies striking her Answer.

 

Regardless of whether Counsel Eugene Kelly can provide an address for Defendant, it is not clear an order striking Ms. Hoang’s Answer is appropriate, as Ms. Hoang’s knowledge of these proceedings is unclear and Mr. Kelly had been obligated to act on her behalf.

 

Government Code section 68608(b) provides: “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case.  Judges are encouraged to impose sanctions to achieve the purposes of this article.”  A dismissal under the above provision, however, requires notice to the party subject to sanction.  (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193.)  Where a dismissal issues without notice, the Court violates a party’s due process rights and the order of dismissal is void. (Id.)

 

Likewise, Local Rule 316 provides that the Court may, at a Mandatory Settlement Conference, dismiss a party’s pleading under Code of Civil Procedure section 581(d) or section 583.410 et. seq., if the Court determines that party “has not proceeded with due diligence in preparing the case for trial.”

 

Finally, Local Rule 381(a) provides that, “[u]pon notice and after hearing, if the court finds any…party has failed to comply with these local rules or has not proceeded with due diligence in preparing the case for trial, the court, on motion of a party…may…[s]trike all or any part of any pleading of that party….” 

Initially, it is unclear whether Local Rules 316 and 381(a) apply, as the references to section 581(d) and section 583.410 (which refer to dismissal for a lack of prosecution), suggests the Rules are referring primarily to the conduct of Plaintiffs.

 

Regardless, however, all of the above provisions require notice to the party subject to sanction and it is undisputed Defendant Lisa Hoang lacks notice of this proceeding.

 

Indeed, the same is clear, as the instant Motion was served on Defendant “[i]n Care of the Clerk of Department C-13.”   Plaintiff provides no authority, demonstrating such service is valid; however, the Court’s own research indicates such service may be appropriate, “[i]f the party’s residence is not known.” (Code Civ. Proc., §1011(b).)

 

Here, Plaintiff has failed to demonstrate any efforts to locate Ms. Hoang.  While Plaintiff correctly indicates that this Court’s July 23, 2013 Order lacks a last known address for Defendant, a review of the record of this action reveals that Plaintiff initially served the Summons and Complaint on Ms. Hoang at the address: “14600 Goldenwest Street, Suite 106, Westminster, CA, 92683.” Counsel for Plaintiff has failed to demonstrate that service on this address is no longer effective.  (Although, it appears this may have been the address for “Westminster Advanced Institute,” the partnership which was the subject of Plaintiff’s investment and the status of which is unknown.)

 

Additionally, given that Defendant’s address may be unknown, it does not appear Defendant has had appropriate notice of the proceedings in this action.   Given the same, the Court is not positioned to find that Ms. Hoang has failed to participate, in a manner which justifies striking her Answer.

 

Further, an order DENYING the instant Motion is appropriate, as it appears Ms. Hoang may still be represented by Mr. Eugene Kelly.   Thus, any failure to participate in this action, may be attributed solely to Counsel.

 

Given the above, it is unclear whether Defendant is guilty of misconduct, sufficient to justify striking her Answer.

 

Based on the above, this Motion is DENIED.

 

(2) CMC is continued to 12-16-14, Dept. C13, at 8:45 am.   MP is to give notice.

 

10

Kraushaar vs Coloplast Corp.

Motion to Appear Pro Hac Vice

 

Ruling:  Off Calendar – no hearing will be held.   The application by Ronn B. Kreps to appear pro hac vice in the subject action is GRANTED, with said order to expire on its one-year anniversary date unless proof of payment of the $500. 

 

The hearing on this application was continued to allow Ronn B. Kreps the opportunity to cure the remaining defect—to indicate whether he is regularly engaged in substantial business, professional or other activities in California.  Kreps filed the additional declaration on 10-11-14.   All required information has been filed, with no information indicating that the application should be denied for any reason.  It does not appear that a hearing is required.

 

Government Code section 70617:  (e)(2) An attorney whose application to appear as counsel pro hac vice has been granted shall pay to the superior court, on or before the anniversary of the date the application was granted, an annual renewal fee of five hundred dollars ($500) for each year that the attorney maintains pro hac vice status in the case in which the application was granted. The entire fee collected under this paragraph shall be transmitted to the state for deposit into the Trial Court Trust Fund, established in Section 68085.

 

11

Nguyen vs JPMorgan Chase

Demurrer to Amended Complaint

 

Ruling:  Off Calendar per MP – no hearing will be held.

 

12

Pacific Western vs Mullins

(1) Motion for Summary Judgment and/or SAI (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  CONTINUED per parties to 1-27-15, Dept. C13, at 2 pm.

    

13

The Aldana Family Living Trust vs Stamegna

(1) Motion for Stipulated Judgment (2) OSC re Dismissal/Settled Case

 

Ruling: Off Calendar – no hearing will be held.      Motion for Entry of Stipulated Judgment is DENIED, as: (1) The Court lost jurisdiction to hear this Motion, given that the default was entered against Defendants on September 29, 2014. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385 and W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.) 

 

“The entry of default terminates a defendant’s right to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.”  (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)  For this reason, upon the entry of default, the Court loses jurisdiction “to do anything but enter the default and judgment.”  (W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.)  “Entry of default ousts the court of jurisdiction to consider any motion other than a motion for relief from default.” (California Practice Guide: Civil Procedure Before Trial, Ch.5-A, §5:7, citing W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72).  Based on the above authority, as Plaintiffs have opted to enter default against Defendants, Plaintiffs are foreclosed from seeking to enforce the Settlement Agreement under Code of Civil Procedure section 664.6 and, rather, must proceed through default judgment.

 

(2) The Court also notes it has insufficient evidence to make a determination as to the validity of the Settlement Agreement.

 

“In ruling on a motion to enter judgment the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement.” (Terry v. Conlan (2005) 131 Cal.Ap.4th 1445, 1455.)

 

Importantly, the Court has no information before it, which will allow a determination that the Agreement was valid.   The Agreement indicates it was executed by Mr. Anthony R. Johnson, on behalf of both Defendants; however, no title is provided for Mr. Johnson and no evidence has been submitted, demonstrating he had authority to execute the Settlement Agreement.  (See Exhibit “A.”) 

 

Here, the Court cannot determine Mr. Johnson’s connection to the Defendant LLCs and, thus, cannot conclude that the Settlement Agreement was valid.

 

Thus, for this additional reason, the Motion must be DENIED.

 

OSC re Dismissal/Settled Case cont. to 1/22/2014 at 8:45am in Dept. C13.

 

14

Elieff vs Armstrong

Motion to Compel Production

 

Tentative Ruling:     Plaintiff Bruce Elieff’s Motion to Compel Defendant Jennifer Armstrong to Produce Documents in Response to Her First Set of Requests for Production of Documents No. 3 is DENIED.

 

Plaintiff contends Defendant has willfully refused to produce any documents with respect to request for production of document no. 3. (Decl. of Jeffrey Benice, at ¶ 3.)  However, Defendant has established that prior to the filing of this motion, she has produced responsive documents. (Decl. of Jennifer Armstrong, at ¶ 3, Exhibit A.)  Moreover, Defendant contends that although she still asserts that the request is overbroad, that she has attached all other documents that are responsive to this discovery request with the opposition papers. (Decl. of Armstrong, at ¶ 4, Exhibit B.)  Thus, Plaintiff has failed to establish that documents were not produced prior to the filing of this motion.  Moreover, Defendant is now producing all other documents she has in her possession. 

 

Sanctions will not be issued against either party.

 

Moving Party is to give notice.