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.

 

November 14, 2017

2:00 PM

 

           

                       

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Case Name

Tentative

1

Booth vs. Park Place Securities, Inc.

 

15-782110

Motion for Attorney Fees

 

Tentative Ruling:   Defendants Select Portfolio Servicing, Inc. (“SPS”) and Wells Fargo Bank, N.A. as Trustee for the Certificate Holders of Park Place Securities, Inc., Asset-backed Pass-through Certificates, Series 2005-WCW2’s (erroneously sued as Park Place Securities, Inc.,) (“Wells Fargo Trust”) unopposed Motion for Attorney Fees is GRANTED in the amount of $66,120, pursuant to Civil Code section 1717 and Code of Civil Procedure section 1033.5(a). 

 

Moving Party is to give notice.

 

2

DAMIAN vs. DEL RIO

 

17-907756

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

 

Ruling:  Off Calendar – no hearing will be held.   (1) The Court SUSTAINS the unopposed Demurrer filed by Defendant Ramos Towing, LLC.

 

The Court construes Plaintiff’s failure to oppose the Demurrer as an abandonment of their claims or an admission the Demurrer has merit.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

 

(2) Motion to Strike: Based on the above decision to sustain the demurrer in its entirety, the motion to strike is DEEMED MOOT. 

 

Plaintiff is to file any amended Complaint within 15 days service of notice of this order.  Moving Defendant to serve notice of this order.

 

3

HENARD vs. DISNEYLAND HOTELS

 

16-853027

Motion to Be Relieved as Counsel of Record

 

Ruling:  Off Calendar – no hearing will be held.   The unopposed motion to be relieved as counsel for Plaintiff Jesse Henard by Carney R. Shegerian of Shegerian & Associates, Inc. is GRANTED. 

 

The moving counsel has substantially complied with the requirements of CRC 3.1362.  Counsel has served the client by mail at the client’s last known address with the copies of the motion papers and confirmed within the past 30 days that the address is current by mail, return receipt requested.  Counsel represents that an irremediable breakdown in the attorney-client relationship has occurred that requires counsel to seek permission to withdraw, pursuant to California Rules of Professional Conduct 3-700(c). 

 

The motion is unopposed.  It also appears that the client will not be prejudiced if the motion is granted at this time since Defendant’s Motion for Summary Judgment and/or Adjudication and the Jury Trial in this action have been continued to 3-20-18 and 5-21-18, respectively.  Thus, the motion is granted.  The order will take effect on filing of proof of service of the order on the client.    

 

Moving counsel to give notice.

 

4

Hoffman vs. Barnes

 

14-713384

(1) Motion for Attorney Fees (2) CMC

 

Tentative Ruling:  Defendant North Orange County Escrow Corporation’s Motion for Determination that it is the Prevailing Party, and as such, entitled to $24,440.50 in attorney’s fees is GRANTED. RFJN granted.

 

MP to give notice. 

 

 

Reading through the entire “Additional Escrow Instruction and Provisions” (Declaration of Rocha, Ex. 1) it is clear that the “you” to which they refer is the “Escrow Holder”—Defendant herein.

 

It appears that not only does §21 apply to Defendant as “you” the escrow holder, but that section is broad enough to include non-contract claims.  The Court notes Plaintiffs’ sole argument is that one COA must be breach of contract for the attorney fees provision to apply.  But a contract provision for attorney fees to the prevailing party may be broad enough to authorize a fee award in tort as well as contract actions.  (Santisas v. Goodin, supra, 17 Cal.4th at 608; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1343.)  Here, the contract states fees are recoverable “in connection with or arising out of this escrow,” and that appears broad enough to cover the claims here.

 

As to lodestar, Defendant contends counsel spent 86.10 hours on this case since April 2014. That appears rather reasonable given Defense counsel prepared herein three (3) demurrers, a motion to strike, and Answer, and two motions to dismiss.  (See Declaration of Rocha, Exh. 3.) There is no argument in the opposition to the contrary.

 

As to hourly rates, Declaration of Rocha establishes that he charges $315 an hour which is reasonable. Another associate attorney who works on this case billed at $275 an hour. Again, reasonable. There being no specific objections to either the time spent, billable rates, or various entries, the Motion for Attorney Fees is granted in its entirety.

 

5

Howard vs. Majestik Construction Inc.

 

17-917700

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

 

Ruling:  Off Calendar as MOOT – no hearing will be held.  First Amended Complaint filed.

 

6

Khajavi vs. Invasix, Inc.

 

17-934445

Petition to Compel Arbitration

 

Tentative Ruling: Petition to Compel Arbitration of Dr. Khajavi’s claims is GRANTED.

 

The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Ibid.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Id. at pp. 413-414.) No jury trial is available for a petition to compel arbitration. (Id. at p. 413.)

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [64 Cal.Rptr.2d 843, 938 P.2d 903], as modified (July 30, 1997).)

Here, Plaintiffs seem to agree that the arbitration agreement exists and Dr. Khajavi’s claims are subject to it.

 

However, Plaintiffs do argue “waiver.” However, “a party who resists arbitration on the ground of waiver bears a heavy burden and any doubts regarding a waiver allegation should be resolved in favor of arbitration.” (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.) Here, Plaintiffs have not sustained their burden as to waiver.

This action was filed in July 2017 and the Petition to Compel Arbitration was filed by October 2017. There was no delay or showing of actions inconsistent with the intent to arbitrate. Simply because no pre-litigation activity mentioned the intent to arbitrate does not establish waiver.

The big dispute here appears to be about what to do with Plaintiff Emilia’s claims, stay the action or proceed?  (See Code Civ. Proc., § 1281.4; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714.)

Here, as MPs apparently concede Plaintiff Emilia’s claims are “separate and distinct” (Motion page 9:12), no stay of her claims seem warranted. Her claims arise out of sales representatives practicing medicine without a license and injuring her face.

However, both Plaintiffs bring a COA for Violation of Business and Professions Code section 17200 against all Defendants—which neither party adequately addresses. Is this claims so related as to warrant a stay of the entire action? Parties should be prepared to discuss at the hearing.

7

LiMandri & Jonna LLP vs. Law Offices of Gary Dordick, APC

 

17-936986

(1) Motion for Leave to File Amended Complaint (2) Motion -- Other

 

Tentative Ruling: (1) Plaintiff LiMandri & Jonna LLP’s Motion for Leave to file Second Amended Complaint is DENIED, without prejudice, as set forth below.

 

Plaintiff seeks leave to file a Second Amended Complaint despite Defendants have filed a special motion to strike same pursuant to Code of Civil Procedure section 425.16 on 9-22-17. Plaintiff seeks leave to not only add two new defendants to this action, but to assert two new causes of action against Defendants. The Court finds that allowing amendment before the Court can rule on the anti-slapp Motion would frustrate the Legislature’s objective of providing a quick and inexpensive method for unmasking and dismissing such suits. (See Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 871-872 discussing Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068.) Allowing the amendment would necessitate ‘a fresh motion to strike,’ triggering “inevitably another request for leave to amend,” and thereby abetting the SLAPP plaintiff “in his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant's energy and draining his or her resources. [Citation.]” (Id. at 872.)

In the event the anti-slapp is denied, Plaintiff may seek leave to amend the Complaint at that time.

Anti-Slapp motion hearing date is advanced to 12-5-17, Dept. C11, at 2 pm.

Moving Party is to give notice. 

 

(2) Plaintiff LiMandri & Jonna LLP’s Motion for Specified Discovery Notwithstanding the Anti-Slapp Discover Stay; and for a Protective Order Finding Waiver of the Attorney-Client Privilege is DENIED as set forth below.

 

Plaintiff’s Motion seeks the following specified discovery: (1) Written discovery on Defendant Mr. Dordick which includes a set of Form Interrogatories; 9 Special Interrogatories; 7 Request for Production of Documents; and 10 Requests for Admissions; (2) Deposition of Defendant Mr. Dordick; (3) Deposition of Attorney Jeffrey Dawson; (4) Deposition of Dr. Johnston; (5) Deposition of Mrs. Johnston; (6) Deposition of Dr. Wardenburg. Plaintiff, however, failed to establish good cause exists for the specified discovery as required by Code of Civil Procedure section 425.16(g).

 

Plaintiff contends good cause exists to allow for this limited discovery to determine what exactly Dordick, Dawson, the Johnstons, and a chiropractor named Wardenburg, told each when discussing the alleged stealing of the Johnston case and that said discovery is needed to establish Plaintiff’s prima facie case for tortious interference.” Plaintiff, however, failed to “specify” what “additional facts” Plaintiff expects this discovery will reveal. Defendant Dordick, Dr. Johnston, Dr. Wardenburg, and Mr. Dawson have already set forth their knowledge concerning the retention of Dr. Johnston of Defendants in their declarations filed in support of the anti-SLAPP Motion. These declarations support Defendants’ contention that there was no “intentional interference” and that it was Dr. Johnston who was unhappy with his then legal representation and Dr. Johnston – not Defendants – who initiated all contact with Defendants. A party’s desire to “test” the declarations submitted by Defendants in support of their anti-SLAPP Motion does not constitute good cause to allow for limited discover. (See, e.g., Sipple v. Found. For Nat. Progress (1999) 71 Cal.App.4th 226, 247.)

The Court DENIES Plaintiff’s request for a protective order finding waiver of any pre-litigation privilege at this time.

 

Moving Party is to give notice.

 

8

Mcintosh vs. Nationstar Mortgage, LLC

 

14-720869

Motion for Judgment on the Pleadings

 

Ruling:  Off Calendar – no hearing will be held.   Continued to 1-30-18. 

 

9

Tanous vs. Nationstar Mortgage, LLC

 

15-810754

(1) Motion to Dissolve Plaintiff’s Preliminary Injunction (2) CMC

 

Ruling:  Off Calendar – no hearing will be held.  Continued to 11-21-17.

 

10

Team Makena, LLC vs. Lasso

 

16-884951

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

 

Tentative Ruling: Demurrer to FAC brought by Defendants John Lasso and ManaMed, Inc. is SUSTAINED, with 15 days leave to amend, as to the Second and Third COAs.  The Demurrer is OVERRULED, as to the remainder.

 

With respect to the Second and Third COAs (Intentional/Negligent Interference with Prospective Economic  Advantage), the Court notes Plaintiff’s allegations of interference are limited.  (See ¶42 and ¶48 of FAC.)  Additionally, these allegations fail to encompass independently “wrongful” conduct, as required.  (See Cross Talk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 646). Rather, the conduct identified falls within the “realm of legitimate business transactions,” which are not inherently wrongful.  (See Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 658); however, as the Complaint includes additional allegations of wrongdoing against Defendants, amendment is possible.

 

As to the remaining claims, while many of Plaintiff’s allegations of damages continue to focus on harm suffered by Team Makena (See ¶17-¶20, ¶22 of FAC), Plaintiff includes sufficient allegations of direct harm, to state its claims:

 

As to the First COA (Breach of Implied Covenant of GFFD), Plaintiff alleges Defendant breached his obligation under the Operating Agreement to act in good faith, by forcing Ossur to “float Team Makena with an extension of unsecured credit, without any compensation or interest, in the form of accounts payable and in the amount of $1.3 million for products Team Makena previously purchased form Ossur in the ordinary course of business…” (See ¶34 of FAC.)

 

This is sufficient to state a separate injury to Ossur which, although related to its position as a shareholder of Team Makena, is nonetheless separate from any injury suffered by Team Makena.

 

Significantly, Defendants do not address the above allegation of damages and offer no argument which demonstrates the damage identified constitutes an injury to Team Makena, which must be pursued derivatively.

 

As to the Fourth COA (Breach of Confidentiality Agreement), Plaintiff alleges Lasso breached the Confidentiality Clause included in §12.1 of the Operating Agreement, “by disclosing information concerning the business and assets of Ossur to manufacturing competitors of Ossur, including but not limited to MANAMED…and using such information to develop competing product lines…” (See ¶56 of FAC).

 

Plaintiff alleges this information included “Ossur’s confidential customer lists, intellectual property, and information relating to Ossur’s marketing, strategy, pricing, and products.” (Id.).

 

The above is sufficient to state an injury separate from any injury sustained by Team Makena.  Consequently, this appears to be a direct as opposed to derivative action and the Demurrer is OVERRULED.

 

Similarly, the Demurrer to the Fifth COA (Misappropriation of Trade Secrets) is OVERRULED:

 

Plaintiff sufficiently alleges Defendants misappropriated trade secrets of Ossur, separate from Team Makena. (See ¶58 of FAC.)   At best, the Demurrer asserts Plaintiff “has not alleged that the trade secrets it is now alleging were misappropriated are different and distinct from the trade secret information which Team Makena is alleging was misappropriated in the Original Complaint,” (See Demurrer: 13:19-22); however, the First Amended Complaint clearly and expressly asserts misappropriation of trade secrets owned by Ossur.

 

Last, given the survival of Plaintiff’s Fifth COA, the Demurrer to the Sixth COA (Unfair Competition), which all parties concede is derivative of the remaining claims, is OVERRULED.

 

 

11

Therrien vs. Christie

 

16-885199

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

 

Tentative Ruling:   Defendant Yeota Christie’s Demurrer to the FAC is MOOT as to the 1st and 3rd COAs; and OVERRULED as to the 2d, 5th through 8th, and 10th COAs, as follows.

 

As to the 1st and 3rd COAs (Breach of Contract), these causes of action were dismissed without prejudice on 9-12-17.

 

AS to the 2nd COA (Breach of Contract), the cause of action is for breach of oral contract, not written contract. As such, Plaintiff was not required to attach a copy of the contract and or set forth its terms verbatim in the contract. An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. (4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 471, p. 509.) Accordingly, the demurrer is OVERRULED as to the 2nd COA.

 

As to the 5th COA (Breach of Contract), Defendant demurs to this cause of action based on the grounds it is a common count for open book account. However, this cause of action is for breach of contract.

 

As to the 6th through 8th COAs (open book account), these claims are not barred by the statute of limitations. “Under California law, a four-year statute of limitations applies to…open book account. (Code Civ. Proc., § 337.)(Prof'l Collection Consultants v. Lauron (2017) 8 Cal. App. 5th 958, 966.)

 

As to the 10th COA (open book account), although the Notice states that Defendant is demurring to same, the Motion includes no legal argument in support of this demurrer.

 

The Court GRANTS Plaintiff’s request for judicial notice of the three verified complaints pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court’s records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.)

 

Moving Party is to give notice.

 

12

Torcaso vs. Floor and Décor

 

15-765651

Motion for Summary Judgment and/or SAI

 

Ruling:  Off Calendar – no hearing will be held.   Notice of  Settlement filed. 

 

13

WESIERSKI & ZUREK LLP vs. MATEEN-BRADFORD

 

16-858310

Petition to Confirm Arbitration Award

 

Ruling:  Off Calendar – no hearing will be held.   Case dismissed.

 

14

West Coast Petroleum Services, LLC vs. Shakankiry

 

17-909982

(1) Motion to Compel Arbitration (2) CMC

 

Tentative Ruling: Defendant Aly Shkankiry’s motion to compel arbitration and stay of action is GRANTED. 

 

Request for Judicial Notice:

 

The Court takes judicial notice of the Complaint and the First Amended Complaint filed in this action.  (Evid. Code, § 452(d).) 

 

Motion to Compel ArbitrationDefendant submits evidence that Plaintiffs agreed to arbitrate the claims alleged in the FAC, pursuant to Paragraph 9B of the Operating Agreement.  (See Complaint and FAC, Exh. A.)  Specifically, Plaintiffs’ claims in this action arise out of Defendant’s operations of two Arco/AmPm stations in Washington (FAC ¶¶ 7-9); and the Operating Agreement between the parties -as members of West Coast Petroleum Services, LLC- contains an arbitration provision where the parties agreed to binding arbitration of all disputes concerning or in any way relating to the Operation Agreement (FAC, Exh. A, ¶ 9B).  The arbitration provision in the Operating Agreement is broad, covering ALL disputes, concerning or in any way related to the Operating Agreement.

 

Defendant has demonstrated, by a preponderance of evidence, the existence of the arbitration agreement and that the disputes alleged in the FAC are covered by the agreement.  Thus, the burden shifts to Plaintiffs to prove by a preponderance of evidence a ground for relief. 

 

Plaintiffs, in opposition, contend that the “Operating Agreement” relied upon by Defendant did not represent the true agreement between the parties.  Plaintiffs claim it was a boilerplate document required by the franchisor British Petroleum to enable Plaintiffs to operate Arco/AmPm stores in Washington, and the true agreement between the parties was the oral agreement, as alleged within the FAC.  Plaintiffs, however, do not submit any evidence, such as their declarations, in support of such contention.  While Plaintiffs appears to rely on the allegations in the FAC, the FAC is not verified. 

 

Plaintiffs also contend the arbitration clause is not enforceable because Defendant did not assent, i.e., Defendant did not subscribe his initial below the arbitration clause.  However, Plaintiffs do not dispute that Plaintiff Hammad agreed to arbitration by subscribing his initials below the arbitration clause.  Moreover, an arbitration clause may be enforced against one party although other parties to the underlying agreement are not bound thereby.  (Grubb & Ellis Co. v. Bello (1993) 19 Cal.App.4th 231, 239.) 

 

Plaintiffs failed to meet their burden, and the motion to compel arbitration is granted. 

 

Motion to Stay Action:  Based on the Court’s tentative decision to grant the motion to compel arbitration, the case is stayed pending resolution of the arbitration. 

 

Defendant to give notice.

 

15

S.L. Contursi, Inc. Rare Coin Gallery vs. Coe

 

14-732816

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

 

Tentative Ruling: Plaintiff S.L. Contursi, Inc. Rare Coin Gallery dba Rare Coin Wholesalers’ Motion for Summary Judgment is GRANTED as set forth below.

 

Plaintiff’s Complaint seeks a declaration that Dr. Coe is barred from asserting a claim against Plaintiff under the 2009 Coe Contract by the applicable statute of limitations. (See Complaint, ¶ 22; Prayer for Relief, subsection (b).)  The statute of limitations for a breach of contract action is four years. (See Code Civ. Proc., §339.) “Traditionally, a claim accrues ‘when it is complete with all of its elements’–those elements being wrongdoing or breach, harm, and causation.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal. App. 4th 1336, 1341.)

 

Here, although Dr. Coe “disagrees as stated” with SSUMF No. 6 based on his declaration at p. 4, line 20 through p. 5, line 4, a review of this testimony reveals that there is no genuine dispute with SSUMF No. 6. As Dr. Coe attests “Griffiths then represented to myself that he would take the 1796 $10 coin and give me $500,000 worth of coins that Griffiths could sell in six (6) months. Griffiths stated that I would begin receiving money right away, and be paid in full at the end of six (6) months.) (See Dr. Coe Affidavit, p. 4, lines 19-24.)

 

It is undisputed that the trade of the 1796 Coin was documented in an invoice; the invoice is dated               

1-14-09; Coe expected to be paid within six months of the date on the Invoice; and as of June 2009 (six months after the date of the Invoice), Coe was aware he had not been paid the full $500,000. (See Response to Separate Statement Nos. 7-11.)

 

In Opposition, Dr. Coe’s Affidavit states that “[a]t no point (before early 2014) did Rare Coin Wholesalers ever tell me that they had sold or released the coins from their possession. Once my son was not allowed the opportunity to see the coins, I became suspicious regarding the existence of the coins. This is when I first realized that they were never purchased by Rare Coin wholesalers or had been disposed of.” (P. 3, lines 1-6.)  This, however, does not raise a triable issue as to whether an action for breach of the 2009 Coe Contract is barred by the 4 year limitations period because it is undisputed that as of June 2009, Dr. Coe knew he had not been paid. (See Response to SSUMF No. 11; see also Dr. Coe deposition testimony on 7/17/15, p. 26:2-6.)

 

The discovery rule to delay the accrual of the statute of limitations is applied “where the plaintiff is unable to see or appreciate a breach has occurred” or “breaches of contract [are] committed in secret.” (William L. Lyon & Assocs., Inc. v. Superior Court (2012) 204 Cal. App. 4th 1294, 1308.) Here, as set forth above, Dr. Coe knew a “breach” occurred in June 2009.

 

As such, the delayed discovery rule does not apply here and any subsequent facts Dr. Coe discovered in 2014 are irrelevant to when the breach of contract claim based on the 2009 invoice accrued.

 

Accordingly, Dr. Coe’s breach of contract claim against Plaintiff would have accrued as of June 2013 – at least one year prior to the filing of Plaintiff’s Complaint on 7-8-14 and prior to the filing of Dr. Coe’s Cross-Complaint on 10-31-14.

 

Moving Party is to give notice.