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.

 

Date: 12/16/14

 

 

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

Chan vs Haroutoonian

(1) Misc. Hearing (2) Motion – Terminating Sanctions (3) Trial Setting Conference

 

Ruling:  (1-3) Off Calendar – no hearing will be held.   Hearings and TSC are CONTINUED to 1-27-15, Dept. C13, at 2 pm.  

 

On 11-18-14, the Court continued the hearing on defendants’ Motion for Terminating Sanctions and set a hearing on Defendants’ objections to the Discovery Referee’s Report No. 4, and Plaintiff’s objections to Discovery Referee’s Report No 5.  The Court requested that the parties return to Judge O’Brien with information regarding the documents still in dispute, and that Judge O’Brien then provide the Court with a recommendation regarding whether Plaintiff is in non-compliance with the 7-1-14 Discovery Order.  No new papers have been filed since 11-18-14.  The Court has received no new information from the parties regarding the status of the document production and the pending dispute, and the status of the parties’ further proceedings before Judge O’Brien.  Given that there are issues apparently remaining unresolved and pending before Judge O’Brien, these matters are continued to January 27, 2015, at 2 pm, in this Department.

 

Defendants’ 9-11-14 objections to Report No. 4 by the Discovery Referee are overruled.

 

Plaintiff’s 10-21-14 objections to Report No. 5 by the Discovery Referee are overruled.

 

Defendants are to separately submit both Referee’s Reports for entry as Orders of this Court.

 

Defendants are to give notice.

 

2

Coastal Heart vs The Lal Law Firm

(1-2) Motions to Compel Arbitration (3) Motion to Stay AAA Proceedings (4) CMC

 

Ruling:  Off Calendar – no hearing will be held.   (1) Defendant The Lal Law Firm, LLC’s Motion to Compel Arbitration is DENIED, without prejudice.  Defendant has failed to meet its burden of demonstrating the existence of a binding arbitration agreement.  There is no declaration or affidavit authenticating the arbitration agreement. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218; Knight, Chernick, Haldeman and Bettinelli, Cal. Prac. Guide: Alt. Disp. Res. Ch. 5-G (The Rutter Group 2014) at 5:307.)

 

In addition, Defendant seeks to arbitrate the following issues:

 

·         Reasonable attorney fees and costs for Defendant in defending this action; and

·         Reasonable attorney fees for services rendered by Defendant to Plaintiffs in the separate lawsuit, Coastal Heart Medical Group v. Renaissance Surgical Arts at Newport Beach, Orange County Superior Court Case No. 2011-493127.

 

The first issue is not ripe for arbitration at this time, and the second issue does not involve this action for legal malpractice and is therefore not subject to Code of Civil Procedure section 1281.4.  In addition, Defendant has failed to establish that it is entitled to piecemeal issues for arbitration.  

 

Moving Party is to give notice.

 

(2) Defendant Jack Rippy’s Motion to Compel Arbitration is Off Calendar per MP.   

 

(3) Plaintiffs Coastal Heart, Inc., Coastal Heart Medical Group, Amer Zarka, M.D., and Anil Shah, M.D.’s unopposed Motion to Stay the AAA Proceedings is DENIED.  To avoid the possibility of inconsistent rulings, these proceedings are STAYED pending the AAA arbitration.  The Court will allow the parties to bring any respective Motions to Compel Arbitration and/or Motions to Consolidate Arbitrations.  (4) A status conference/CMC is set for March 3, 2015, Dept. C13, at 8:45 am.  Moving Parties are to give notice.

 

3

Conn vs Sun

(1) Motion – Other (2) Wage and Earnings Assignment

 

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

 

(1) MOTION FOR ASSIGNMENT OF RENTAL PAYMENTS (527-529 S. STATE COLLEGE): Plaintiff Tim Lee Conn’s motion for: (1) an order pursuant to Code of Civil Procedure section 708.510, assigning rental payments due to Defendants Kuang Ching Sun and/or Hung Ying Sun, from property located at 527-529 S. State College Blvd., Anaheim, CA 92806; and (2) a related restraining order is DENIED.

 

Plaintiff has not met his burden of proffering evidence sufficient to show that either Defendant owns real property located at 527-529 S. State College Blvd.  To establish ownership, Plaintiff relies exclusively on an Investigative Report attached as Exhibit 2 to the Potter Dec. in support of this motion.  (See Potter Dec., ¶ 5.)  Nothing in that report appears to address property at the address at issue in this motion.

Plaintiff also has not met his burden of establishing that either Defendant is entitled to collect rent from any person in connection with 527-529 S. State College Blvd.  The only evidence proffered on this issue is Plaintiff’s counsel’s “information and belief.”  (Potter Dec., ¶ 6.)  Counsel offers no foundation for that belief.

 

Finally, Plaintiff has not proffered any evidence sufficient to show the required “need” for a restraining order in connection with the assignment sought.  (See Code Civ. Proc., § 708.520, subd. (b).)

 

This order is without prejudice to Plaintiff’s right to move for an assignment of rents for real property located at the same address, with or without a request for a restraining order, supported by sufficient evidence.

 

MOTION FOR ASSIGNMENT OF RENTAL PAYMENTS (511 S. STATE COLLEGE): The court DENIES Plaintiff Tim Lee Conn’s motion for: (1) an order pursuant to Code of Civil Procedure section 708.510, assigning rental payments due to Defendants Kuang Ching Sun and/or Hung Ying Sun, from property located at 511 S. State College Blvd., Anaheim, CA 92806; and (2) a related restraining order.

 

Plaintiff has not met his burden of establishing that either Defendant is entitled to collect rent from any person in connection with 511 S. State College Blvd.  The only evidence proffered on this issue is Plaintiff’s counsel’s “information and belief.”  (Potter Dec., ¶ 6.)  Counsel offers no foundation for that belief.

 

Plaintiff also has not proffered any evidence sufficient to show the required “need” for a restraining order in connection with the assignment sought.  (See Code Civ. Proc., § 708.520, subd. (b).)

 

This order is without prejudice to Plaintiff’s right to move for an assignment of rents for real property located at the same address, with or without a request for a restraining order, supported by sufficient evidence.

 

Plaintiff is to serve notice of these orders.

 

4

Diaz vs Sky High Sports

(1-2) Motions to Compel Production

 

No hearing will be held.  Motions continued to 1/23/2015 by stipulation.

 

5

Fofrich vs Western Medical

(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 – no hearing will be held.   Defendants’ unopposed motions to compel Plaintiff, Blake Fofrich, to respond to Requests for Production of Documents, Special Interrogatories and Form Interrogatories are granted.  Defendants’ request for sanctions is denied.  The Notices of Motion do not specify the type of sanctions sought (Code Civ. Proc., § 2023.040).

 

Plaintiff, Blake Fofrich, is to serve verified responses, without objection, to the (1) Requests for Production of Documents (Set One), (2) Special Interrogatories (Set One), and (3) Form Interrogatories-Employment Law (Set One), no later than January 23, 2015.

 

(4) CMC is continued to 2-11-15, Dept. C13, at 8:45 am.  

 

Moving Parties are to give notice.

 

6

Innovation Ventures vs Rubinstein

Motion to Continue Trial

 

Ruling:  Off Calendar as MOOT – no hearing will be held.

 

7

Lai vs Tran

Order to Show Cause

 

Ruling:  (1-2) Off Calendar – no hearing will be held.   The Order to Show Cause is continued to February 17, 2015, at 2 pm, in this Department.  Defendant has established that the dwelling is a homestead, and therefore exempt, and that the amount of the homestead exemption is $100,000 pursuant to Code of Civil Procedure section 704.730(a)(2).  But there is insufficient evidence before the Court as to the fair market value of the dwelling, or the amount of the current liens and encumbrances on the dwelling.

 

The Court will appoint an appraiser to determine the fair market value of the subject dwelling located at 18714 Ambrose Lane, Huntington Beach, California, 92648, pursuant to Code of Civil Procedure section 704.780(d). The cost of the appraisal shall be comparable to and not exceed similar fees for similar appraisals in the area in which the dwelling is located.  The parties are to submit the name of a mutually agreed upon appraiser or submit a list two appraisers each by January 5, 2015.   If there is no agreement, the Court will select an appraiser from these lists. 

 

Plaintiff is to file, no later than five court days before the continued hearing date, a copy of the appraisal, and supplemental evidence showing more precisely the existing liens and encumbrances on the property.  Code of Civil Procedure section 704.760 requires that the application set forth the amount of any liens or encumbrances on the dwelling and the names and addresses of the lienholders.  (Code Civ. Proc., 704.760)  Here, Plaintiff sets forth only the original amounts of the liens (what they were when the DOT’s were executed) without providing information regarding the current amounts still owed by Defendant.  Plaintiff may be able to ascertain the precise amounts of obligations secured by senior liens by making a written demand for beneficiary statements from the senior lienholders under Civil Code section  2943.

 

There appear to be procedural defects with Plaintiff’s application, including (1) no proof of service showing service on Defendant, as well as the occupants of the dwelling, of the order to show cause, application and notice of hearing (Code Civ. Proc., § 704.770(b)), and (2) no admissible evidence showing the application was filed within 20 days after service by the levying officer that the levy was made on the dwelling (Code Civ. Proc., § 704.750).  However, Defendant filed a substantive opposition to the application on 12-3-14 (including a declaration from his spouse, among others) and did not raise any procedural irregularities, service or timing issues, thus waiving them. 

 

Rulings on Defendant’s Evidentiary Objections:

 

Declaration of Plaintiff:

 

1-4 are sustained; 5-6 are overruled

 

Reply brief:

 

1-3 are overruled; 4 is Sustained as to exhibit attached to Reply.

Defendant’s counsel is to give notice.

 

8

Lenard vs Orange County Transportation

(1) Demurrer to First Amended Complaint (FAC) (2) CMC

 

Tentative Ruling:  (1) Demurrer to FAC is SUSTAINED, without leave to amend, as to the Fifth and Sixth COAs.  OVERRULED, as to the Third COA.  Defendant shall file its Answer within 10 days of this order.

 

“Generally…provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees.” (Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729,   736.)  Significantly, in this instance, neither Labor Code sections 512 nor 226.7 (which form the basis of Plaintiff’s Fifth and Sixth COAs) expressly state that they apply to public entities.   Likewise, the Court in California Correctional Peace Officers found Labor Code sections 512 and 226.7 do not apply to public agencies. (California Correctional Peace Officers, supra 188 Cal.App.4th at 649-654.)

 

Here, Plaintiff does not dispute that Defendant OCTA is a “public entity.” (See Opposition: 5:15-16.)  Rather, Plaintiff’s Opposition to this Demurrer relies exclusively on Woodruff v. County of San Diego In-Home Supportive Services Public Authority (2014 WL 2861431); however, this is an unpublished opinion, which cannot be considered by this Court, pursuant to CRC 8.1115(a).

 

Thus, this Court adopts the broad principles articulated in Johnson and California Correctional, and Defendant’s Demurrer to the Fifth and Sixth COAs is SUSTAINED, without leave.

 

The Demurrer is OVERRULED, as to the Third COA, as Plaintiff alleges: “Defendant terminated Plaintiff because it did not want to deal with any future leaves of absence Plaintiff may take, and it did not want to accommodate her disability by providing her proper leave time.” (¶27 of FAC.)  This allegation appears sufficient to survive Demurrer. (See Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341.)

 

9

Maddux vs City of Fountain Valley

Motion for Summary Judgment/SAI

 

Ruling:  Off Calendar as MOOT – no hearing will be held.   Cross-Complaint dismissed with prejudice.  MP is to give notice.

 

10

Mediterranean Food vs T.B. Holdings

Motion to be Relieved as Counsel of Record

 

Ruling:  Off Calendar – no hearing will be held.  Matter already heard per Ex Parte request.

 

11

Salcido vs Bartlett Care Center

Motion to Compel Arbitration

 

Tentative Ruling:   Defendants, Barlett Care Center, LLC dba French Park Care Center and Sun Mar Management Services, Inc.’s Motion to Compel Arbitration is DENIED, without prejudice.  Defendants failed to bear their burden of establishing a valid agreement to arbitrate. It appears the Plaintiff’s adult son may have signed the arbitration agreement. However, there is no evidence that the he had authority to enter into the contract on her behalf. There is no evidence of a durable power of attorney or anything else establishing she employed her adult son to act as her agent.  (See Pagarigan v. Libby Care Ctr., Inc. (2002) 99 Cal. App. 4th 298.) RP is to give notice.

 

12

Schulz vs Krispel

(1) Demurrer to First Amended Complaint (FAC) (2) CMC

 

Tentative Ruling:  As to Defendant Krispel’s Demurrer to the FAC, the Court rules as follows:

 

1st COA (Elder Abuse/Financial Abuse):  Demurrer is sustained with leave to amend.  Plaintiff pleads that Defendant has essentially cut him out of the business, of which he is a 50 percent owner. There do not appear to be any facts of “intent to defraud.”  In terms of “wrongful use”, although Plaintiff generally pleads “Plaintiff is informed and believes and on that basis alleges that Defendant has done the above actions with the intent of forcing the Plaintiff out of the business, to further deny him his property and interests” (FAC¶19), there is no allegation that Defendant did so knowing his conduct would be harmful to the elder.  (See Welf. & Inst.  Code, §15610.30.)

 

2nd COA (Breach of Fiduciary Duty):  Demurrer is overruled.  Defendant does not argue he does not owe a fiduciary duty to Plaintiff. Rather, he argues that none of the actions taken by him are a breach of his fiduciary duty. Plaintiff pleads Defendant breached his duties by:

a)    Hiring and firing employees without discussing the matters with the Plaintiff.

b)    Reducing the Plaintiff’s salary without discussing the matter with Plaintiff.

c)    Instructing the Office Manager to cease paying Plaintiff his bonuses.

d)    Giving raises to other employees without consulting Plaintiff.

e)    Depriving Plaintiff of his management rights within the business.

f)    Engaging in intimidation tactics to force Plaintiff into early retirement.  (FAC ¶25.)

 

None of these things, without more, seem to involve Defendant putting his interests above the interests of the Corporation, with the exception of “engaging in intimidation tactics to force Plaintiff into early retirement”. If Defendant was making unilateral decisions, even if for the betterment of the company, but to force Plaintiff into early retirement, this could conceivably be a breach of fiduciary duty and should go to the merits.

 

3rd COA (Breach of Contract):  Demurrer is overruled.   Defendant's first argument is that by-laws are not a contract. However, Plaintiff has cited a case finding otherwise.  (Casady v. Modern Metal Spinning & Mfg. Co.  (1961) 188 Cal. App. 2d 728, 732-33.)  Defendant also argues the Business Judgment Rule bars this COA. However, this is a defense that should go to the merits. Furthermore, this is a company owned by two individuals and clearly unilateral actions taken by one may be a conflict of the interest of the other. Therefore, the second argument fails.

 

4th COA (Partitioning):  Defendant did not demur to this COA, despite stating in the notice of motion that he sought a demurrer to the entire FAC.

 

5th COA (Slander Per Se) and 6th COA (Slander Per Se):  Demurrer is sustained with leave to amend. 

These COAs involve Defendant accusing Plaintiff of viewing child pornography on his computer in front of other people. Plaintiff pleads the words Defendant spoke were slanderous per se because they accused Plaintiff of violating Penal Code section 311, possession of child pornography. (FAC ¶55, 65.)

 

Per Civil Code section 46, slander is:

 

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

 

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

 

Defendant argues Plaintiff has not pled that the accusations of child pornography published to other people was false because Plaintiff merely pled “There words uttered were a false statement because Plaintiff did not have, never has had, and has never viewed child pornography on his office computer.” (FAC ¶57.)

The thing that makes the statements slanderous is their criminal nature (child pornography), not where they were viewed (on the office computer).  Plaintiff needs to plead he has never viewed child pornography on any computer to establish Defendant’s statements as false.

20 days leave to amend. MP is to give notice.

 

13

Sharifpour vs Le

Motion for Attorney Fees

 

Tentative Ruling:  Motion for Attorney Fees and Costs is GRANTED, in the amount of $2,805.00.   The Court orders Defendants to pay attorney fees in the amount of $2,805.00, regarding Plaintiffs’ Post-Judgment, non-appeal work.  The remainder of Plaintiffs’ request is DENIED, without prejudice. 

 

First, the Court DENIES Plaintiffs’ request for additional pre-judgment attorney fees, as untimely.  Pursuant to CRC 3.1702(b), “a notice of motion to claim attorney’s fees for services up to an including the rendition of judgment in the trial court….must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108.”  CRC 8.104(a) provides for the filing of a Notice of Appeal, 180 days after entry of Judgment, at the latest.   Here, as over 2-years has passed since entry of Judgment, this Motion is untimely, with respect to pre-judgment fees.

 

Additionally, while Plaintiffs’ Counsel attempted to seek relief under Code of Civil Procedure section 473, based on injuries incurred in a motorcycle accident, Counsel’s motorcycle accident did not occur until June 8, 2013, more than 9 months after entry of Judgment in this action and 3 months after the expiration of the deadline articulated in CRC 3.1702(b). (See ¶9-¶13 of Dec.)  Thus, the above referenced motorcycle accident is unrelated to Counsel’s failure to timely seek pre-judgment attorney fees.   Based on the above, Counsel failed to show “good cause” for the above untimely request and, similarly, the Court finds “that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (See CRC 3.1702(d) and Code Civ. Proc., §473(b).)

 

As to the fees requested as a result of the Appeals, the Court GRANTS relief under Code of Civil Procedure section 473(b), as the deadline for seeking such fees commenced running upon filing of the Notices of Remittitur (in March of 2014) and Counsel demonstrates he was significantly ill during this period.

 

However, the request for $65,000 in flat fees is ultimately DENIED, as Plaintiffs, again, failed to provide any evidence demonstrating the requested amount was reasonable:  At most, Counsel declares that flat fees are “generally” less expensive.  Such is insufficient to justify an award.

 

Last, as to the post-judgment (non-appeal) fees, the deadlines articulated in CRC 3.1702 do not apply. (See CRC 3.1702 and Crespin v. Shewry (2004) 125 Cal.App.4th 259, 268.)   However, a motion which seeks to recover post-judgment fees, cannot be delayed, such as to cause prejudice to the opposing party. (Id. at 271).

 

Here, as Defendants failed to demonstrate any prejudice, the Court finds the motion timely; however, the amount requested is reduced to $2,805.00, for the following reasons:  (1) Mr. Escandari fails to offer any evidence of his experience, sufficient to justify an hourly rate of $549.00; and (2) The hours requested in connection with this motion were excessive.

 

Defendants’ RFJN is GRANTED.

 

14

Tseng vs State of California

(1) Demurrer to Complaint (2) CMC

 

Matter off calendar by the moving party.

CMC continued to 1/28/2015 at 8:45am.

 

15

Valero vs City of Placentia

Motion for Summary Judgment/SAI

 

Off calendar by the moving party.  Case has settled.

 

16

Mason vs Specialized Loan Servicing

OSC re Preliminary Injunction

 

Ruling:  Off Calendar – no hearing will be held.   Hearing is CONTINUED to 1-13-15, Dept. C13, at 2 pm, per stipulation.