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: 10/28/14

 

 

 

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Case Name

Tentative

 

 

 

1

Innovation Ventures vs Rubinstein

Motion to Appear Pro Hac Vice

 

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

 

2

Bento vs Bliss Linens

Motion for Modification

 

Tentative Ruling:   The Motion by Defendant Bliss Linens World, LP, to modify the 9-14-14 Protective Order is granted.  Bliss Linens is to file for the Court’s entry the proposed Protective Order [labeled “Amended [Proposed] Protective Order” in the form attached as Exhibit “A” to the Proposed Order submitted with the moving papers. 

 

Bliss Linens has established it has a legitimate interest in preventing Plaintiff, who admittedly is in direct competition with Bliss Linens, from having access to certain responsive documents reflecting Bliss Linens’ costs and pricing, and vendor sourcing information. Under the proposed Amended Protective Order, Plaintiff’s counsel and expert consultants will have full access to any documents marked “Attorneys-Eyes Only,” and Plaintiff will have the ability to move to challenge any designation should it not be appropriate. 

 

In her opposition, Plaintiff does not explain why she -- as opposed to her attorneys and their expert consultants -- requires access to all documents relating to costs, pricing and vendor sourcing to determine whether, and to what extent, commissions are owed to Plaintiff.  In this regard, Plaintiff offers no evidence to support her statement that “Plaintiff is the only individual on her team who can identify which documents relate to projects and/or clients she worked on and is in the fact the only one, other than Defendants, who can identify items which may or may not be at issue in the case.” (Opp. 2:10-12.) 

 

In their Reply, Defendants represent that their documents are not organized by project and that Defendant intends to make boxes of documents available for inspection by Plaintiffs’ attorneys. 

 

It appears the parties have failed to sufficiently meet and confer on this issue, and resolving this issue would likely have resolved Plaintiff’s concern over modifying the Protective Order.  For that reason, both parties’ requests for monetary sanctions are denied. 

 

Defendants and their counsel, together with counsel for Plaintiff, are strongly encouraged to work together in good faith to attempt to resolve this issue.

 

Moving Party is to give notice.

 

3

Ong vs Sanderson

Motion to Consolidate

 

Ruling:  Off Calendar – no hearing will be held.  Plaintiffs’ Motion to Consolidate actions is GRANTED.  The unlawful detainer case filed by defendant Vivian Sanderson, OCSC Case No. 30- 2014-00745077, is ordered transferred to this Court and consolidated for all purposes with this action, which will be the lead case.  The summary procedures of an unlawful detainer action are not meant to apply to an action like this one, where issues of title to the underlying property are in dispute. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367.)  Further, defendant Sanderson cannot now claim prejudice as a result of any delay in adjudicating her alleged right to possession of the subject property after she sought a trial continuance of this action back in August 2014.  Moving Parties are to give notice.

 

The Motion to Consolidate is granted.  The case of Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, is directly on point.  In Martin-Bragg, the Court of Appeal held it was an abuse of discretion to refuse a party’s request to consolidate an unlawful detainer and quiet title action for trial, and the moving party was prejudiced by being forced to litigate the complex issue of title to the property under the summary procedures that govern actions for unlawful detainer. 

 

“When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions.” (Id. at 385.)  The summary procedures of an unlawful detainer action apply in routine causes in which the tenant has failed to pay rent, not a case like this involving complicated issues regarding whether title was intended and conveyed to the party that executed a lease. (Id. at 387-390, citing Lindsey v. Normet (1972) 405 U.S. 56, [summary unlawful detainer procedures are constitutionally acceptable as long as they are applied to straightforward issues of possession and incidental damages].).)

 

Here, plaintiffs in this action seek, among other things, to quiet title to the property that is the subject of the unlawful detainer action defendant filed after this action was already pending.  The issue of who is entitled to title to the subject property relates directly to the issue of the right to possession. 

 

Further, defendant Sanderson cannot now be heard to complain about a delay in adjudicating her alleged right to possession of the subject property after she sought a trial continuance of this action in August 2014.

 

4

DeMarco vs Newport Mesa Unified

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Production

 

Tentative Ruling:  (1-2) The motions by Newport-Mesa Unified School District to compel discovery responses are GRANTED.  It is hereby ordered that Debbra DeMarco serve responses, without objection, to Judicial Council Form Interrogatories – Employment Law (Set One);  Judicial Council Form Interrogatories – General (Set One); and  Request for Production of Documents (Set One) within 30 days’ notice of this court’s ruling. The court further awards $500 in sanctions for these three, combined, basic motions, against Debbra DeMarco, payable to the moving party within 30 days. Moving Party is to give notice of the court’s ruling.

 

5

Kent  vs Fin City Foods

(1, 4) Motions to Compel Further Responses to Form Irogs (2, 3, 5) Motion to Compel Further Responses to Requests for Admissions

 

Tentative Ruling:  The Motions to Compel filed by defendants Fin City Foods (“FCF”) are GRANTED IN PART.  As it is undisputed supplemental responses were served while the motions were pending, the motions are MOOT except as to the issue of sanctions.  

 

Sanctions are properly sought by moving party FCF on each of the motions at issue, as the original responses were patently inadequate, appropriate meet and confer efforts followed on the part of FCF, but not on the part of Plaintiffs, and supplemental responses were not served until after these motions were filed.

 

The $250 hourly rate for Mr. Lucas is appropriate here. The time claimed for meet and confer efforts on the Interrogatory motions is proper, along with that for preparing the motions.   However, as supplemental responses were served before the replies were to be filed, rendering the motions moot except as to sanctions, and there will be only one hearing for all of the five pending motions, a total of 1.2 hours/motion for preparing the related replies and attending the hearing appears sufficient. 

 

The following sums are thus imposed on Plaintiffs as sanctions under Code of Civil Procedure sections 2023.010(e) and (f), 2023.020, and 2033.030(a), which apply to each of these motions, and under section 2030.290, for Motions 1 and 4 below, and section 2033.290(d), for Motions 2, 3 and 5 below:

 

Motion No. 1: to Compel Further Responses from Ms. Love on Form Interrogatories, Set One - $1100 in sanctions are imposed against Ms. Love;

Motion No. 2: to Compel Further Responses from Ms. Love to Requests for Admissions, Set One - $475 in sanctions are imposed against Ms. Love;

Motion No. 3: to Compel Further Responses from Ms. Kent to Requests for Admissions, Set One - $475 in sanctions are imposed against Ms. Kent;

Motion No. 4: to Compel Further Responses from Ms. Kent on Form Interrogatories Set One - $1100 in sanctions are imposed against Ms. Kent;

Motion No. 5: to Compel Further Responses from Ms. Love on Requests for Admission, Set Two - $475 in sanctions are imposed against Ms. Love.

 

All such sanctions are to be paid to defendant Fin City Foods, through its counsel of record, Mr. Lucas, within thirty days after service of notice of this ruling.  Moving Party is to give notice.

 

6

Skilled Healthcare vs Dharma

(1) Motion for Summary Judgment/SAI (2) Motion for Bifurcation (3) CMC

 

Tentative Ruling:  (1) The Motion by Skilled Healthcare Group, Inc., and Skilled Healthcare, LLC (collectively, “Skilled”) for summary judgment of the First Amended Complaint filed in the Consolidated Case and the Cross-Complaint filed in this action by Dharma Construction Service, Inc. (“Dharma”), is GRANTED pursuant to Code of Civil Procedure sections 437c, subdivisions (o)(2) and (p)(2).  Skilled has met its burden of showing that the affirmative defense of unclean hands bars Dharma’s entire FAC, and Cross-Complaint, and all causes of action therein. 

 

The following undisputed evidence establishes that Dharma engaged in bribery and a kickback scheme, without Skilled’s knowledge, to obtain construction contracts from Skilled:

1.            Roger Cove worked for Skilled from November 2003 to August 2011. (Cove Depo. 38:19-20; 42:15-18; 289:8-290:7.)  

2.            Cove was involved in every project between Skilled and Dharma. (Cove Depo. 194: 16-19.) 

3.            According to Dharma’s FAC and cross-complaint, the contracts on which Dharma sues were entered into in May 2008, July 2008, May 2009, February 2010, June 2010, March 2011, April 2011 and June 2011 -- during the time Cove was employed by Skilled. 

4.            Dharma engaged in a kickback scheme by paying Cove cash and services free of charge, directly and through Romar Consulting, for the purpose of getting more construction work from Skilled.  No legitimate services were ever provided by Romar to Dharma, and Dharma knew this.  A total of $102,435 was paid to Romar by Dharma for which no legitimate services were rendered. (Cove Depo. 91:25-92:5; 292:18-22; 300:13-305:12; 314:6-25; 315:2-316:2; 333:2-11; 333: 21-25.)  

5.            Beginning in 2004, Cove gave information to Dharma in connection with bids for construction projects, but did not give the same information to other contractors. Cove considered this information confidential to Skilled. (Cove Depo., 191:13-20; 316:17-24; 317:17-21; Thai Depo., 42:18-43:11; 180:19-181-5.) 

6.            Cove approved change orders from Dharma without really looking at what was in them.  (Cove Depo., 203:13-19, 204:20-205:4.)

7.            In this action, Dharma refused to answer discovery based on Khan’s constitutional right against self-incrimination under the Fifth Amendment regarding (1) whether it had obtained confidential information about Skilled’s construction needs from Romar Consulting, Inc. (RFA 2); (2) whether it obtained preferential treatment regarding Skilled’s construction needs, not available to other bidders, from Roger Cove, Plaintiff’s employee, and Romar Consulting, Inc. (RFAs 4-5); (3) whether Dharma paid money or gave benefits to Cove and/or Romar Consulting, Inc., in the form of “kickbacks” to direct Skilled’s work to Dharma and to obtain information about Skill’s needs on construction bids (RFAs 9-11, 18-22, 24); (4) whether the contracts between Dharma and Skilled were entered into under false pretenses (RFA 15); (5) whether Dharma won the contracts by underbidding other contractors (RFA 16); (6) whether Dharma was aware of other contractors bids before submitting its own bid (RFA 17); (7) whether Dharma billed Skilled for work it did not do on the Hancock Park Property (RFA 41).

 

This conduct perpetrated by Dharma pertains to the very subject matter at issue in its FAC and Cross-Complaint and affects the equitable relations between it and Skilled.  “The equitable principles underlying the clean hands doctrine do not require a finding that [the Plaintiff] was guilty of perjury, concealment or other illegal conduct, ‘[f]or it is not only fraud or illegality which will prevent a suitor from obtaining equitable relief. Any unconscientious conduct upon his part which is connected with the controversy will repel him from the forum whose very foundation is good conscience.’” (Pond v. Ins. Co. of No. America (1984) 151 Cal.App.3d 280, 291.)

 

In its opposition, Dharma does not dispute that it has unclean hands with respect to the construction contracts it entered into with Skilled while Cove was working for Skilled from 2003 through 2011.  Nor can it. As a plaintiff and cross-complainant seeking to pursue claims against Skilled and on the other hand refusing to provide discovery to support those claims, Dharma cannot have its cake and eat it too. The plaintiff's filing of an action operates to waive its constitutional privilege against self-incrimination with reference to any factual issues ... tendered by the complaint. (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175.) If a plaintiff persists in claiming his privilege, he will have to dismiss his lawsuit with prejudice. (Id.)

 

Dharma also cannot rely upon the mere allegations of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c(p)(2).) On that basis, Dharma’s RFJN of its unverified pleadings and the mechanic’s liens attached thereto is denied

 

Dharma’s contention that the doctrine of unclean hands does not apply because Skilled has failed to link any alleged bribery or misconduct to the specific contracts on which Dharma sues lacks merit.  While Dharma is correct that Skilled failed to show specific bribes and fraud connected with the contracts at issue, Dharma’s misconduct pertains directly to the subject matter of Dharma’s complaint, which meets the legal requirements for the applicability of unclean hands.  There is no dispute that the subject contracts were entered into during the time period that Cove was working for Skilled, that Cove was involved in some way in all of Dharma’s contracts, and that Dharma was paying both cash and undesignated payments to Cove and Romar during the same time period in which the construction projects that are the subject of Dharma’s pleadings were assigned to Dharma.  It follows that it would be uniquely within Dharma’s knowledge, not Skilled, as to which payments related to which projects, and there is testimony the payments to Cove were to induce Cove to send all work to Dharma generally, not necessarily per project.

 

Finally, Dharma contends that, to invoke the affirmative defense of unclean hands, Plaintiff must show that it “did not engage in inequitable conduct itself.” (Opp. 3:27-28.) Dharma cites no authority for this proposition, so the Court need not consider it. “‘[E]very brief should contain a legal argument with citation of authorities on the points made.   If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’” (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)  In any event, Dharma cited no evidence that would show inequitable conduct on the part of Skilled in dealing with Dharma.  Dharma cites to evidence that Cove’s superiors at times approved change orders submitted by Dharma, and that Cove was not the only person from Skilled who negotiated every contract between Skilled and Dharma.  This, however, does not establish Skilled’s knowledge of the kickback scheme being committed by Cove and Dharma, or that Skilled had unclean hands with respect to the contracts on which Dharma sues.  Skilled’s RFJN filed in support of its Reply is untimely, and is denied.

 

(2) Skilled’s Motion to Bifurcate or Sever Dharma’s affirmative claims is denied as moot

 

Moving Parties are to give notice.

 

7

Anderson vs Crigler

Motion to Quash Service of Summons

 

Tentative Ruling:  Motion to Quash Service of Summons is GRANTED, as it is undisputed that Mr. Crigler was not a Trustee of the Crigler Trust, at the time of service.   Thus, the substituted service completed on June 25, 2014, as against “Robert Crigler, as Trustee of the Robert and Claudine Crigler Trust” was defective and of no legal effect.

 

Plaintiff has failed to cite any authority, demonstrating that service against a former Trustee, is effective against the Trust. 

 

Moreover, to the extent Plaintiff seeks to pursue individual liability against Mr. Crigler (as suggested within Plaintiff’s Opposition), Plaintiff provides no authority which demonstrates that the individual liability of Mr. Robert Crigler is subject to re-litigation, due to attempted service on Mr. Crigler, in a representative capacity.

 

Pursuant to Code of Civil Procedure section 418.10(a)(1),  a Defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her.  

“When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, emphasis added).

 

Here, the record demonstrates Plaintiff served Robert Crigler, as Trustee of the Robert and Claudine Crigler Trust, through substituted service on June 25, 2014.  Co-Trustee, Karen Haley seeks to quash this Service of Summons, on the basis Robert Crigler is not a Trustee of the Trust.

 

Initially, Plaintiff Opposes Defendant’s Motion, on the basis Defendant Karen Haley, as Co-Trustee lacks standing to attack the validity of service against Robert Crigler, as Trustee.  Importantly, however, relevant authority establishes that the target of the July 25, 2014 service is, in fact, the Robert and Claudine Crigler Trust, of which Defendant Karen Haley is the appropriate representative.  “[A] trust itself can neither sue nor be sued in its own name.  Instead, the real party in interest in litigation involving a trust is always the trustee.” (Presta v. Tepper (2009) 179 Cal.App.4th 909, 914.)   Additionally, “an ordinary express trust is not an entity separate from its trustees.” (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548.)

 

Thus, “[a] claim based on a contract entered into by a trustee in the trustee’s representative capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administration of the trust may be asserted against the trust by proceeding against the trustee in the trustee’s representative capacity, whether or not the trustee is personally liable on the claim.” (Prob. Code, §18004, emphasis added.)   Here, as Plaintiff served Robert Crigler as Trustee, it is the assets of the Trust which are subject to judgment.    Therefore, Karen Haley, as a Co-Trustee of the Trust, not only appears to have standing to object to service, but appears to have a fiduciary duty, to protect the assets of the Trust.  (See Estate of Goulet (1995) 10 Cal.4th 1074, 1082, wherein the California Supreme Court references the “trustee’s fiduciary duty to protect the trust corpus.”)

 

Significantly, pursuant to the Declaration of Ms. Haley, Ms. Haley is currently a successor Trustee of the Crigler Trust. (¶1 of Haley Dec.)  Additionally, Mr. Crigler resigned as a Trustee, effective September of 2012.  (¶2 of Haley Dec.)  Accordingly, Mr. Crigler has not been authorized to accept service on behalf of the Trust, since that time. (Id.)  Moreover, Ms. Haley declares that, since September of 2012, the Trust has performed no trust administration activities at 9111 S. La Cienga Blvd. in Inglewood (the apparent office address of Mr. Crigler and the location of substituted service). (¶3 of Haley Dec.)

 

Plaintiff does not dispute the above facts; rather, Plaintiff’s Opposition makes clear that it is Plaintiff’s intent to pursue individual liability against Mr. Crigler.  

 

Specifically, Plaintiff cites Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, for the assertion a Trustee can be held personally liable, where the Trustee “intentionally or negligently acted or failed to act in a manner that establishes personal fault.” (Id. at 877-878.)   Based on this authority, Plaintiff asserts “it is apparent that the naming of each trustee in a representative capacity is the proper procedural step to ensure that trust and personal assets are available to satisfy any judgment entered against either of them. (Opposition: 6:9-11).

 

Thus, Plaintiff apparently believes a suit against Robert Crigler, as Trustee, is the appropriate means of holding Robert Crigler, the individual, liable for Plaintiff’s claims. 

 

Significantly, while Haskett, indeed, provides a mechanism for holding Trustee’s personally liable for Trust conduct (intentional or negligent acts), this Court notes it previously GRANTED Defendant Robert Crigler’s Motion for Summary Judgment, on September 11, 2014.   Accordingly, the issue of Defendant’s personal liability has been fully adjudicated and any argument for holding Mr. Crigler individually liable for Plaintiff’s claims is untimely. 

 

Indeed, Plaintiff’s misunderstanding is made clear by Plaintiff’s assertion: “Because the court has ruled that Crigler could not be sued in his individual capacity, it is necessary that he be sued in his representative capacity….” (Opposition: 8:11-14.)  Importantly, Plaintiff provides no authority which demonstrates that the individual liability of Mr. Robert Crigler is subject to re-litigation, due to service on Mr. Crigler, in a representative capacity.

 

Therefore, it appears undisputed the only remaining basis for Mr. Crigler to participate in this action, is in his representative capacity, (the capacity through which he was served); however, as the undisputed evidence demonstrates that Mr. Crigler is not a Trustee of the Crigler Trust, the service against Mr. Crigler, failed to properly demonstrate jurisdiction over the Trust.

 

The Court notes it unquestionably has jurisdiction over the Trust, through the service on and appearance of, Karen Haley as Co-Trustee.   Nonetheless, given all the circumstances, the Court will quash service of the Summons and Complaint, as the service was indisputably improper.

 

8

Meyers vs Weatherly Bay

Off Calendar – Notice of Settlement of Entire Case has been filed.

9

Waterfield Financial Services vs Bofi Holding

(1-5) Motions for Relief from Waiver of Objections to Special Irogs

 

Tentative Ruling:  (1-5) Off Calendar – no hearing will be held.

 

10

Kim vs Galita

Motion for Leave to file Cross-Complaint

 

Ruling:  Off Calendar – no hearing will be held.   Defendant Josie Galita’s unopposed Motion for Leave to File a Cross-Complaint is GRANTED.  Defendant is to file and serve the proposed Cross-Complaint within 10 days.  Motion and discovery deadlines are continued pursuant to Code.  Moving Party is to give notice.

 

11

Marasigan LLP vs Miller

Claim of Exemption -- Levy

 

Ruling:  Off Calendar – no hearing will be held.   Motion for Determination of Claim of Exemption is CONTINUED to December 9, 2014, pursuant to Code of Civil Procedure section 703.580, as the Court has insufficient evidence before it to determine the nature of the property being levied or the validity of the Claim of Exemption. 

 

Significantly, it appears undisputed that a “beneficiary's interest in income” is not “subject to enforcement of a money judgment until paid to the beneficiary.” (Prob. Code, §15300.)  Similarly, pursuant to Code of Civil Procedure section 699.720(a)(8), “[t]he interest of a trust beneficiary” is not subject to execution.  Further, pursuant to Probate Code section 15301(a), a beneficiary’s interest in principal is not “subject to enforcement of a money judgment until paid to the beneficiary.”

 

While it appears from the Writ of Execution Returned that Plaintiff has levied “any and all funds due and owing to the Judgment Debtor,” in the control or possession of “American Funds,” the nature of this property is wholly unclear.  Plaintiff has failed to demonstrate whether the subject funds were held by and paid to Defendant, such that these provisions are inapplicable.

 

Moreover, pursuant to Probate Code section 15301(b), where principal is held by a Trust, but has become “due and payable to the beneficiary,” a judgment creditor must file a petition under Code of Civil Procedure section 709.010(b) in order to obtain an order “directing the trustee to satisfy the money judgment out of that principal amount.”  Moreover, such a petition must be brought before “a court having jurisdiction over administration of the trust…” (Code Civ. Proc., §709.010(b).)

 

As the nature of the subject property is unclear, it is unclear whether Plaintiff has appropriately levied the same or whether Plaintiff is improperly attempting to circumvent the requirements of Probate Code section 15301(b) and Code of Civil Procedure section 709.010.

 

Based on the above, the Court cannot determine the Claim of Exemption, at this time, and the hearing is CONTINUED to December 9, 2014.   Plaintiff is ordered to submit a Supplemental Brief and admissible evidence, clearly identifying the funds being discussed and the appropriateness of this procedure, no later than November 17, 2014.  The Supplemental Brief shall not exceed 5 pages.

 

Any Opposition thereto shall be filed and served no later than November 24, 2014.  A Reply may then be filed on December 2, 2014.

 

Plaintiff shall personally serve notice of this Order on the Levying Officer, by 10-28-14, 5 pm, pursuant to Code of Civil Procedure section 703.590, indicating that the levied property shall not be released.  Additionally, Plaintiff shall serve notice of this Order on Defendant, through mail, no later than November 3, 2014.