TENTATIVE RULINGS

 

DEPT C-11

 

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. Do not call the department to verify if you should appear or not. Please read below for the information.  If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first to find out if all parties are submitting and then moving party is to telephone the clerk at (657)622-5211 with the status of all parties. 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.

 

January 16, 2018

 2:00 PM

 

 

                       

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Case Name

Tentative

1

APOLLO AUTO FINANCE vs. STENGER

 

17-947944

 

Application/Request

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

 

2

Abdelmuti Restaurant Holdings, LLC vs. Slapfish Franchise, LLC

 

16-892790

 

(1) Motion for Discovery Sanctions (2) Motion for Sanctions (3) CMC

Ruling:  (1-3) Off Calendar – no hearing will be held.  Continued to 2-27-18, Dept. C11, at 2 pm. 

 

3

Artemis Search Partners, Inc. vs. CV Resources, Inc.

 

17-935098

 

(1) Demurrer to Complaint (2) Motion for Order to Stay Proceedings

 

Ruling:  Off Calendar – no hearing will be held. Plaintiffs Artemis Search Partners, Inc. and ASP Staffing Account and Account and Finance, LLC’s Motion to Stay All Litigation is GRANTED.  Based on the ruling to stay the action, Defendants’ Demurrer to the Complaint is taken OFF-CALENDAR. 

 

Counsel for Plaintiffs represents, in pertinent part, as follows: Plaintiffs filed this lawsuit on August 1, 2017 (Motion, Amin Decl., ¶ 3); on August 3, 2017, Defendants Jennifer Caison and Michael Vass demanded that Plaintiffs agree to arbitrate this matter pursuant to the arbitration provision in the Operating Agreement (Id., ¶ 5); defense counsel represented that although Defendant CV Resources, Inc. (“CVR”) was not a party to the Operating Agreement, Defendant CVR would also agree to submit to arbitration (Id., ¶6); Defendants’ counsel threatened to file a Motion to Compel Arbitration if Plaintiffs did not submit this matter to arbitration (Id., ¶ 7);  Plaintiffs agreed to submit this dispute to arbitration (Id., ¶ 8); Plaintiffs initiated arbitration with JAMS on August 8, 2017 (JAMS Ref No. 1200053414) (Id., ¶ 9); and that the arbitration claim filed with JAMS is virtually identical to the Complaint in this matter (Id., ¶ 10). 

 

Defendants, in opposition, contend that the stay should not be granted, but that the Court should sustain the Demurrer without leave to amend and dismiss the Complaint, because it was filed in breach of a confidential arbitration provision.  However, an agreement to submit a dispute to private arbitration does not deprive a superior court of jurisdiction over the matter.  (Dial 800 v Fesbinder (2004) 118 Cal.App.4th 32, 44.)  A party to an arbitration agreement can initially resort to an action at law.  If the opposing party wishes to pursue arbitration, it can file a petition to compel arbitration under CCP § 1281.2 in the action at law or by raising the existence of the arbitration agreement as an affirmative defense in its answer; otherwise, that party waives the right to contractual arbitration.  (Id. at 44-45.) 

 

Defendants also appear to argue that the Court does not have jurisdiction to order the stay because the arbitration was not ordered by the Court, but agreed upon by the parties.  However, the fact that Plaintiffs voluntarily agreed to submit this action to arbitration after Defendants demanded arbitration, should not prevent a stay of this action.  The purpose of the stay is to protect the arbitrator's jurisdiction by preserving the status quo until the arbitration is resolved.  (MKJA, Inc. v 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 658 – continuation of court proceedings disrupts arbitration proceedings and may render them ineffective, in absence of stay.)

 

It appears that a stay of this action is appropriate since the arbitration claim filed with JAMS is virtually identical to the Complaint in this matter. 

 

Plaintiffs to give notice. 

 

4

Eisenberg & Associates vs. Chapman

 

16-775144

(1) Motion to Identify Expert Witnesses (2) Motion for Summary Judgment and/or SAI

(1-2) Off Calendar – no hearing will be held.  Parties to contact clerk re: continued hearing date.  

 

5

Glaser vs. Shineman

 

16-889286

 

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Answers to Special Irogs (3) Motion to Compel Production (4) Motion to Deem Facts Admitted

 

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

 

6

J P H Consulting, Inc. vs. Jarvis

 

15-823625

 

(1) Demurrer to Amended Complaint (2) Motion to Strike (3) Motion for Sanctions (4)  Motion to Strike   (5) CMC

Tentative Ruling:  (1, 3) Off Calendar per MP – no hearing will be held on these motions.  

(2) Motion to Strike:  The Motion to Strike brought by Defendants Gary Jarvis and Care West Insurance Risk Management, LLC is DENIED, in its entirety.

 

The Request for Judicial Notice submitted with the Reply is DENIED, as untimely.  “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161).

 

Initially, Defendants assert several factual allegations have been added, which are unconnected to Plaintiffs' claims for Fraudulent and Negligent Misrepresentation and, thus, exceed the scope of this Court's leave to amend. 

 

It is true that where leave to amend is granted following an order directed to a particular pleading defect, the leave can be construed as limited to the identified defect. (See People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785-786); however, as CCP §436 is discretionary, the Court declines to strike the allegations identified by Defendants.

 

First, it is not clear the allegations are unrelated to misrepresentations.  Second, regardless, as Plaintiffs have not added additional claims or theories of liability against Defendants, no prejudice results from these additions.   Third, given the early stages of this action, a Motion for Leave to Amend would almost certainly be granted, such that requiring its filing only further delays the finalization of these pleadings.

 

Next, Defendants seek to have factual allegations stricken, which they assert are demonstrably false; however, Defendants appear to base this argument on the assertion Plaintiffs are barred from offering parol evidence of statements contrary to the written agreements.  However, extrinsic evidence is admissible to establish fraud or negligent misrepresentation. (See Thrifty Payless, Inc. v. Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1241.)

 

Last, while the Reply asserts the Fourth Amended Complaint includes sham allegations, Defendants failed to adequately raise this issue in the Motion.  “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161.)

 

Similarly, the Court will DENY as untimely the Request for Judicial Notice.  (The Court notes the Request includes only the First through Fourth Amended Complaints, which are Court records pursuant to Evidence Code section 452(d).)

 

 

(4) Motion to Strike:  The Motion to Strike brought by Defendant Chelsea Rhone Services, LLC is DENIED, in its entirety. 

 

Initially, Defendant asserts several factual allegations have been added, which are unconnected to Plaintiffs' claims for Fraudulent and Negligent Misrepresentation and, thus, exceed the scope of this Court's leave to amend. 

 

It is true that where leave to amend is granted following an order directed to a particular pleading defect, the leave can be construed as limited to the identified defect. (See People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785-786); however, as CCP §436 is discretionary, the Court declines to strike the allegations identified by Defendants.

 

First, it is not clear the allegations are unrelated to misrepresentations.  Second, regardless, as Plaintiffs have not added additional claims or theories of liability against Defendant, no prejudice results from these additions.   Third, given the early stages of this action, a Motion for Leave to Amend would almost certainly be granted, such that requiring its filing only further delays the finalization of these pleadings.

 

While Defendant’s Reply seeks to identify specific facts which alter the nature of the action, at best, Defendant asserts the facts will require additional discovery; however, the need for additional discovery, alone, does not demonstrate prejudice, especially where, as here, no trial date has been set.

 

Given the excessive delay in finalizing the pleadings, which has been brought about by Defendants numerous challenges to the pleadings which necessitated leave to amend and Plaintiff’s repeated vague and ambiguous amendments, despite the age of this action the case remains in its early stages.

 

Based on all of the above, the Court exercises its discretion to DENY the Motion to Strike, which will finalize the pleadings and prevent any further amendments of the Complaint or challenges to the same.

 

Finalization of the pleadings will permit the parties to organize their discovery and proceed to trial, without further delays.

 

7

Liang vs. Goodman

 

14-752667

 

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

 

Tentative Ruling:  Plaintiff seeks leave to file a FAC to provide additional context to previously pled causes of action, as well as clarify and supplement the factual bases and legal theories plead in the original complaint.  (Motion, Sims Decl., ¶ 3.)  The “redlined” version of the proposed FAC is attached as Exhibit 2 to the Declaration of G. Brent Sims.  Plaintiff explains she was not fully or confidently aware of the new facts alleged in the proposed FAC at the time she filed her original complaint in October 2014, and the facts have been uncovered in a piecemeal fashion after the discovery of this case has progressed.  (Id., ¶ 6.)  For example the allegations contained in new paragraphs 19 through 22 of the FAC were only recently discovery during preparation of responses to discovery and review of material in preparation for deposition.  (Ibid.)  Plaintiff also represents that new allegations contained in paragraphs 33 through 36 and 46 and 52 are based on the recent ruling from the Ohio federal court on or about 5-4-17.  (Id., ¶ 7.)  Plaintiff has substantially complied with the requirements of CRC 3.1324.  It appears the amendment is necessary and proper and Defendants will not be prejudiced if leave is allowed. 

 

Defendants, in opposition, contend the motion is untimely, as it was made over three years after Plaintiff filed this lawsuit, and over five months after Defendants filed their summary judgment.  However, it appears this action was stayed for approximately a year, and Plaintiff represents that the facts supporting the requested amendment were only recently discovered.  Further, it appears Defendants will not be prejudiced by the proposed amendment since the trial in this action has not yet been scheduled.  Defendants also contends Plaintiff’s federal copyright claim is barred by the statute of limitations.  However, it appears the proposed amendments clarify and supplement the factual bases and legal theories pled in the original complaint, i.e., the proposed FAC does not add any new causes of action, and after leave to amend is granted, Defendants will have the opportunity to attack the validity of the amended pleading.

 

Plaintiff is to separately file and serve the First Amended Complaint by 1-22-18.

 

RFJN:  The Court declines to take judicial notice of the documents filed in the Southern District of Ohio and in Orange County Superior Court, as requested by Defendants, on the grounds they are not relevant for the purposes of this motion. 

 

Plaintiff is to give notice.

 

8

Mahmoud vs. Craft

 

 17-930951

 

Demurrer to Complaint 

 

Tentative Ruling:  Defendant Camzam Investment, Inc, dba Black & White Car Rental’s demurrer to the 1-3rd COAs (Strict Liability/Negligence/Breach of Warranty) of Plaintiff Issam Mahmoud’s Complaint is sustained with 20 days leave to amend based on failure to state sufficient facts to constitute a cause of action.

 

Simply because Defendant may not have had the authority to rent the subject vehicle does not support causes of action for strict liability, negligent products liability, or breach of warranty. Although creative, Plaintiff is attempting to fit a square peg into a round hole. The Court cannot ascertain at this time whether the omission of certain defendants from the first complaint renders this Complaint a sham.

 

RFJN is granted. Parties are reminded to meet and confer prior to filing any subsequent demurrers.

 

MP to give notice.

 

SHAM PLEADING: In ruling on a demurrer, a court may take judicial notice of admissions or inconsistent statements by plaintiff in earlier pleadings in the same lawsuit, in prior similar lawsuits that plaintiff had voluntarily dismissed, or in discovery documents, and may disregard conflicting factual allegations in the complaint. [Del E. Webb Corp. v. Structural Materials Co. (1981) 123 CA3d 593, 604,—“Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless” (emphasis added); Larson v. UHS of Rancho Springs, Inc. (2014) 230 CA4th 336, 344, 179 CR3d 161, 166 (judicially noticing allegations in plaintiff's prior, voluntarily dismissed lawsuit against same defendants)]

 

When a complaint makes both general allegations and specific allegations, and a conflict or inconsistency exists between them, the specific allegations control over the inconsistent general allegations and may render the complaint defective even though the general allegations standing alone might have been sufficient. [Perez v. Golden Empire Transit Dist. (2012) 209 CA4th 1228, 1235-1236; Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 CA5th 602, 619]

 

Here, Defendant ask the Court to take judicial notice of the prior lawsuit wherein it was pled that “On or about August 5, 2016 DINH, acting as an agent of APEX, rented a..BMW from CRAFT.”  (RFJN, Exh. 1 ¶10.) “Subsequently, APEX transferred the Vehicle to B&W and B&W was in possession of the Vehicle through September 2, 2016.”  (Id. ¶11.) “On or about August 5, 2016, Atif Elsayed rented the Vehicle from B&W.” (Id. ¶12.)

 

Defendant suggests that because Plaintiff has now deleted any facts or reference to Dinh and Apex that this lawsuit is somehow a sham. However, that cannot be ascertained from simply taking judicial notice of the prior Complaint. Simply because the chain of possession may have been a little different in lawsuit 1, does not mean Black & White, who ultimately rented the vehicle to Atif Elsayed is off the hook if its right to possession was not correct. So, there do not appear to be sufficient facts to demonstrate this lawsuit is a sham.

 

1st COA (STRICT PRODUCTS LIABILITY), 2nd COA (NEGLIGENT PRODUCTS LIABILITY), and 3rd COA (BREACH OF WARRANTY):   1st COA Plaintiff pleads “There was a defect in The Vehicle because Black & White did not have an authority to rent The Vehicle or have a right to possess the vehicle as evidenced by the fact that CRAFT reported The Vehicle stolen.”  (Complaint ¶15.)

 

2nd COA Plaintiff pleads “BLACK & WHITE provided inadequate warnings for the use of The Vehicle for the purpose for which it was intended. It was likely to cause harm to any person renting The Vehicle, including PLAINTIFF, because of the dispute in BLACK & WHITE’s authority or possession over The Vehicle.”  (Complaint ¶21.)

 

3rd COA Plaintiff pleads, “At the time and place of said rental and delivery, The Vehicle was not reasonably fit and safe for its intended use by renters or users, including PLAINTIFF herein, and was therefore not of merchantable or rentable quality.”  (Complaint ¶27.)

 

Per the Carlin case cited by Defendant:

Strict liability has been invoked for three types of defects-manufacturing defects, design defects, and 'warning defects,' i.e., inadequate warnings or failures to warn.” (Anderson, supra, 53 Cal.3d at pp. 994-995; see Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1].)  (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1110 [56 Cal.Rptr.2d 162, 920 P.2d 1347].)

 

Here, what is the defect? There is nothing about the vehicle which suggests it was not manufactured correctly or failed to perform as a consumer would expect.

 

Furthermore, as to the 2nd COA a failure to warn that the vehicle was not in a rentable condition has nothing to do with a defect. Although creative, Plaintiff’s attempt to stretch these facts goes too far.

 

Finally as to Breach of Warranty, what was the purchase? There are no allegations that the vehicle was not fit for driving—simply that it was unable to be rented.  (See Comm. Code, §§2314, 2315.) 

 

None of these causes of action appear to make sense. Demurrer is sustained with leave to amend in an abundance of caution.

 

9

Nguyen vs. Ha

 

17-921131

 

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

 

Tentative Ruling:  Defendant’s unopposed Motions to compel verified responses to form Irogs, Special Irogs, RFPs (set 1) is GRANTED. Plaintiff to serve verified responses within 20 days.  (Code Civ. Proc., §2030.290, 2031.300.)  No sanctions.

 

MP to give notice.

 

Unopposed motions to compel Plaintiff to provide responses to Form Irogs, Special Irogs, and RFPs (set 1) are granted pursuant to the authority cited by MP in the moving papers.

 

Requests for sanctions are denied as not being specifically requested in the notices of motion.

 

Code of Civil Procedure section 2023.040:

 

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

In this instance, although MP cited section 2023.010 in the notices of motion, MP did not request sanctions specifically or even use the word “sanction” in the notices of motion. Thus, the request, if any, is deficient and does not comply with section 2023.040.

 

 

10

SHIPP vs. LIBERTY DENTAL PLAN OF CA

 

17-910626

 

(1) Motion to Be Relieved as Counsel of Record (2) CMC

 

Ruling:  Off Calendar – no hearing will be held.  The unopposed motion to be relieved as counsel for Plaintiff Peyton Shipp by The Law Offices of Carlin & Buchsbaum LLP is GRANTED.

 

Moving counsel has substantially complied with the requirements of CRC 3.1362. 

 

Counsel represents that: (1) counsel cannot continue to represent Plaintiff because of an irrevocable breakdown in the attorney-client relationship; (2) substantial irreconcilable differences have developed between counsel and the client; (3) under the circumstances, counsel believes it is in the best interest of all concerned to terminate the attorney-client relationship between the client and the firm; and (4) should the Court desire further information, counsel will attempt to provide it in a manner consistent with their ethical considerations. 

 

Counsel has served the client by mail at the client’s last known address with the copies of the motion papers, but counsel has been unable to confirm that the address is current or to locate a more current address for the client after making the following efforts: (1) mailing the motion papers to the client’s last known address, return receipt requested; (2) calling the client’s last known telephone number or numbers; and (3) calling and e-mailing client at current e-mail address and phone number. 

 

Counsel was previously ordered to serve the client by delivering the papers to the court clerk pursuant to Code of Civil Procedure section 1011(b) and CRC 3.1362(d).  On 12-13-17, Counsel filed a proof of service demonstrating that the clerk of the court was served by mail on 12-12-17, as ordered by the court. 

 

The motion remains unopposed.  It appears that the client will not be prejudiced if the motion is granted at this time.  There are no motions pending and the trial in this action is not yet set.   

 

CMC is continued to 3-19-18, Dept. C11, at 8:45 am.  

 

Moving counsel to give notice. 

 

11

Smith vs. County of Orange

 

16-874481

 

Motion for Bifurcation

Ruling:  Off Calendar – no hearing will be held.  Request for dismissal filed, 1-3-18. 

 

12

Yonis vs. Albertsons, LLC

 

16-857795

 

(1) Motion for Determination of Good Faith Settlement (2) TSC

 

Tentative Ruling:  Defendants Albertsons, LLC and New Albertsons, Inc.’s (collectively “ALBERTSONS”) Motion for Determination of Good Faith Settlement is GRANTED as follows.

 

The Court finds ALBERTSONS has made a sufficient showing that the Tech-Bilt factors have been met. (See the declaration of G. Goharzad, ¶¶ 4, 7-12, and 20.) The burden was on Defendant Assembled Products Corporation (“ASSEMBLED PRODUCTS”) to establish the settlement was not in good faith, i.e., that the settlement value of $250,000 is so out of the ball-park in relation to the Tech Bilt factors, which it failed to do. No “evidence” was submitted to show lack of good faith.

 

ASSEMBLED PRODUCTS also failed to show that a continuance is necessary to contest the issue of good faith based on any of the Tech Bilt factors. ASSEMBLED PRODUCTS has failed to show what evidence can be obtained from the deposition of Mr. Griffin, the Albertson’s store manager, who is identified as the PMK with most knowledge concerning the maintenance or repairs to the cart. Moving Defendants have already presented evidence that any maintenance or repairs to the cart was Cross-Defendant Market Equipment’s responsibility, not Moving Defendants. (See Goharzard Decl., ¶7.) As such, any testimony by Mr. Griffin as to repairs would concern Cross-Defendant Market Equipment, not Moving Defendants.

ASSEMBLED PRODUCTS also contends it will obtain information pertaining to the chain of custody and condition of the cart when ALBERTSONS’ obtained possession of it; any warnings provided by ALBERTSONS; whether ALBERTSONS warned its customers not the carts outside; the condition of the cart at the time of Plaintiff’s accident; and Plaintiff’s accident.

 

ALBERTSONS’ discovery responses in March 2017 stated that it did not know where the cart is located, what happened to the cart, or who has custody of the cart. (See Exh. B to Reply to Motion.) ALBERTSONS responded in discovery that there are no witnesses who saw Plaintiff’s accident and produced all repair documents in its possession for over a year prior to the incident. (See Goharzard Decl., ¶18.)

 

And, as to whether Moving Defendants would be liable since the cart was outside the store when the incident occurred, Moving Defendants produced evidence that Plaintiff testified the cart was acting improperly even inside the store on the date of the incident because it stalled twice while Plaintiff was riding the cart inside the store. (Id., ¶ 17.)

 

The Court notes a copy of the settlement agreement was provided to ASSEMBLED PRODUCTS (See Exh. D to Reply).  

 

Moving Party is to give notice.