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: 10/22/14

 

LAW AND MOTION CALENDAR SCHEDULED FOR 10/21/2014 WILL BE HEARD ON 10/22/2014 AT 2:00PM.

 

 

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Case Name

Tentative

 

 

 

1

CMRE Financial vs Kinn

Claim of Exemption – Wage Garnishment

 

Ruling:   Off Calendar – no hearing will be held.   The court finds there is good cause to continue the hearing on the claim of exemption by judgment debtor Christopher M. Kinn aka Christopher M. Kim, Sr., because the claim of exemption has not been filed by the levying officer. The hearing is continued to 11-18-14, Dept. C13, at 2 pm, with judgment debtor to give notice of continuance.  

 

The only document the court lacks is judgment debtor Kinn aka Kim’s claim of exemption, which should have been attached as a financial statement.  

 

Judgment creditor’s notice of hearing on claim exemption reflects that it was served by mail on judgment debtor (at an address not previously identified in the file) and the levying office, which is the L.A. County Sheriff’s department.

 

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

 

As of 10-21-14, the claim of exemption is not on file.

 

2

Skilled Healthcare vs Dharma Construction

Cont. to 10/28/2014 by the moving party.

3

Scilabs Nutraceuticals vs Luberski

Cont. to 11/4/2014 by the moving party.

4

Kraushaar vs Coloplast

Motion to Appear Pro Hac Vice

 

Ruling:  Off Calendar per MP – no hearing will be held.  The hearing on the application of Ronn B. Kreps is CONTINUED to November 18, 2014, Dept. C13, at 2 pm, to allow the filing of a supplemental declaration responding to CRC, Rule 9.40(a)(3) no later than 10 court days prior to the continued hearing date.    Moving Party is to give notice of the continuance.

 

The verified application includes all required information except whether counsel has “regularly engaged in substantial, professional or other activities in the State of California.”  (CRC, Rule 9.40(a)(3).)

 

The Court notes counsel has only applied for (and been granted) pro hac vice status in one other California court within the past two years.  Proper notice has been given to the State Bar and plaintiff counsel. Proof of payment of $50 to the State Bar was also filed.

 

Accordingly, the Court will continue the hearing for submission of a supplemental declaration responding to CRC, Rule 9.40(a)(3).

 

5

Robinson vs Beamer

Off calendar by the moving party.

6

Dendekker vs Wells Fargo

Cont. to 1/27/2015 by stipulation.

7

Uppal vs Chaudhri

(1) Motion to Quash Service of Summons (2) Demurrer to Complaint (3) CMC

 

Tentative Ruling:  (1) Demurrer to Complaint is SUSTAINED, with 15 days leave to amend, as the Complaint fails to allege all necessary elements of a claim for Intentional Interference with Expectation of Inheritance and is uncertain.   “[T]he tort of IIEI is only available when the aggrieved party has essentially been deprived of access to the probate system.”  (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1057.)   As Beckwith explains: “By applying a…last recourse requirement to the tort in California, the integrity of the probate system is protected because where a probate remedy is available, it must be pursued.  In addition, the only plaintiffs who will be able to utilize the tort are those who lack an adequate probate remedy because of the interference of another.” (Beckwith, supra, 205 Cal.App.4th at p. 1052).

 

Here, Plaintiff fails to allege she lacks adequate or alternative means by which to litigate her claims; rather, the Complaint alleges Narinder’s Will was “accepted by the courts in India and in New York State,” (¶12 of Complaint),  a fact which suggests, not only, the existence of alternative legal avenues, but potentially relevant Court orders.

 

Additionally, Defendant identifies several areas of factual uncertainty, which render both the allegations against Defendant and the jurisdiction of this Court unclear.  For example, it is unclear whether Plaintiff obtained the property rights that are the subject of this action in 2001.   Additionally, in such event, it is unclear how the administration of a separate will in 2012, has or can interfere with this inheritance.   Moreover, as asserted by Defendant, it is unclear whether Plaintiff is seeking to adjudicate the rights to property located in India and unclear whether Plaintiff is asking this Court to intervene in foreign proceedings.   Importantly, “the courts of California cannot make a decree which will operate to change the title to real or personal property beyond the territorial limits of this state…” (Getty v. Getty (1933) 130 Cal.App. 519, 520.)  As these questions are important and effect the validity of Plaintiff’s claim and the jurisdiction of this Court, the Complaint is sufficiently uncertain to justify an order SUSTAINING the Demurrer.  Nonetheless, leave to amend is GRANTED, to allow Plaintiff an opportunity to clarify the nature of her claims.

 

(2) Motion to Quash Service of Summons is GRANTED, as Plaintiff failed to comply with the Hague Service Convention, rendering service void, and has failed to demonstrate sufficient “minimum contacts” to justify personal jurisdiction.

 

Pursuant to Code of Civil Procedure section 413.10(c), service on individuals outside the United States is subject to the rules articulated in the Hague Service Convention.  "Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law." (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)  "This is true even in cases where the defendant had actual notice of the lawsuit." (Id.)  Similarly, "California courts may not exercise jurisdiction in violation of an international treaty." (Id. citing Suzuki Motor Co. v. Superior Court (1988) 200 Cal.App.3d 1476, 1484.)   Here, both Proofs of Service provided by Plaintiff, demonstrate Defendant Rajinder Chaudhri was served while in India. (See Exhibit "A" of Motion and Exhibit "G" to Declarations in Opposition.) 

India acceded to the Hague Service Convention on November 23, 2006. 

 

Pursuant to Article 2 of the Convention, "[e]ach contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States and to proceed in conformity with the provisions of articles 3 to 6." (Hague Service Convention, November 15, 1965, 20 U.S.T. 361.)  Article 3 of the Convention goes on to require "[t]he authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention..."  (Id.)

 

Finally, while Plaintiff asserts "that service under the Hague Convention is not required as to Defendant RAJINDER, as he is a California resident who happened to be located in India at the time of service," (See Opposition: 3: fn. 1), Plaintiff provides no authority to support this assertion.  Rather, pursuant to Article 1 of the Hague Service Convention, "[t]he present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad."  (Hague Service Convention, November 15, 1965, 20 U.S.T. 361.)  As a result, to effect service on Defendant in India, Plaintiff is required to submit her request for service through the Central Authority of India.  As there has been no indication that service was completed in accordance with this convention and, rather, the Proofs of Service provided by Plaintiff demonstrate Plaintiff was personally served in India (with no reference made to the Central Authority), the service is void. (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)

 

Additionally, Plaintiff failed to meet her burden of establishing sufficient “minimum contacts,” to justify personal jurisdiction. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)   First, Plaintiff fails to present any evidence, which demonstrates specific conduct in California relating to her claims; rather, Plaintiff provides general contacts with California.

 

Further, Plaintiff’s admissible evidence is limited to the following: (1) Rajinder visited California at least 10 times, within the past 20 years, with visits ranging between 7-days and 30-days. (¶5 of Uppal Dec.); (2) Plaintiff’s Husband assisted Rajinder in his Application for permanent residency. (¶7 of Uppal Dec.); (3) Plaintiff and Rajinder opened a bank account in New York, which Rajinder used, while visiting in California. (¶8 of Uppal Dec.); and (4) Rajinder is listed as an “excluded” party, on Plaintiff’s automobile insurance. (¶12 of Uppal Dec.).

 

While Plaintiff attempts to submit evidence that Rajinder is a “manager” or otherwise involved with a California LLC, Plaintiff’s evidence is lacking in foundation and unauthenticated:  Plaintiff wholly fails to explain her connection to the subject LLC, such that the Court cannot conclude the basis of her knowledge. 

Similarly, absent some connection to the LLC or some demonstration the subject documents constitute “business records,” the attached forms are hearsay which Plaintiff cannot appropriately authenticate.

 

In contrast to the above, Defendant Rajinder testifies his contacts with the State of California consist solely of two trips, over the last five years, with no trip lasting more than 7-days. (¶13 of Rajinder Dec.)  Defendant declares he does not own property in California or conduct business therein. (¶7-¶16 of Rajinder Dec.)  Further, in contrast to Plaintiff’s testimony, Defendant asserts he has never received any distributions from the California LLC nor voluntarily involved himself in the LLC. (¶14-¶15 and ¶18 of Supplemental Rajinder Dec.)  

 

Based on all of the above, the demonstrated contacts are insufficiently “substantial” or “continuous” to justify general jurisdiction and “take the place of physical presence in the forum.” (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090.)  Last, the demonstrated contacts with California are insufficient to make the jurisdiction of this court “foreseeable,” such that the exercise of jurisdiction is reasonable.   (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 273.) 

 

8

Perez vs Nelson

Demurrer

 

Ruling:  Off Calendar as MOOT – no hearing will be held.   Second Amended Complaint filed, 10-9-14.

 

9

JBL Holdings vs Cherna

(1)     Demurrer to First Amended Complaint (FAC) (I. Moskowitz) (2) Demurrer to FAC (C. Moskowitz) (3) CMC

 

Tentative Ruling:  (1-2) The court OVERRULES the Demurrers filed by Defendants Cherna Moskowitz and Irving Moskowitz, in their entirety. 

 

Both demurrers contend the claims fail as to moving parties because the alter-ego and agency allegations are not sufficiently pled. However, the FAC specifically alleges facts sufficient to support both the alter-ego and agency claims for purposes of demurrer.  (See e.g. FAC ¶6 (a)-(e), ¶8 and ¶30.)

 

Moving parties also argue the specific performance claims fail because the requested relief is impossible and/or improper. However, as a demurrer challenges only the sufficiency of the causes of action pled, claims as to the remedies sought are beyond the scope of demurrer, as a demand for improper relief does not vitiate an otherwise valid cause of action. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014), at §7:42.1, citing inter alia, Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561–1562, and Caliber Bodyworks, Inc. v. Sup.Ct. (Herrera) (2005) 134 Cal.App.4th 365, 385.) 

 

Finally, moving parties also argue the fraud and misrepresentation claims are not pled with sufficient specificity as to them.  However, although the FAC does not attribute any alleged representations directly to either moving party, the alter-ego and/or agency allegations therein are sufficient to also state the causes of action as to them, for purposes of demurrer.

 

Plaintiff’s RFJN is GRANTED IN PART.  Judicial notice of the existence of and filing of or recordation of the subject documents is proper, as well as the clear legal effects thereof, but the truth of statements made in such documents is not subject to judicial notice.  (Evid. Code, § 452(c)(d); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) The Court will therefore take judicial notice of the existence of and recordation of Exhs. 1-4, and of the existence of and filing of Exhs. 5-7: the request is otherwise denied for purposes of these demurrers.

 

Moving parties are to answer within 20 days, and to give notice of these rulings.

10

California Scents vs Western Fragrant

Off calendar by the moving party.  CMC is continued to 11-20-14, Dept. C13, at 8:45 am.

11

Nguyen vs JPMorgan

Off calendar by the moving party.  Case Management Conference continued to 11/12/2014 at 8:45am.

12

MV 18 Land vs Moorhouse

(1) Motion to Compel Deposition (Oral or Written) (2) CMC

 

Tentative Ruling:   The unopposed Motion by Plaintiff, MV 18 Land, LLC, to Compel the Custodian of Records of National Legal Studies Institute, Inc., to comply with the Deposition Subpoena for Personal Appearance and Production of Documents and Things, issued on June 23, 2014, is GRANTED pursuant to Code of Civil Procedure sections 1987.1(a) and 2020.030. 

 

The Custodian of Records of National Legal Studies Institute, Inc., is hereby ordered to personally appear for deposition, and produce all responsive documents without objection, on November 3, 2014, at 9:30 a.m., at the location specified on the Deposition SubpoenaFAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN CONTEMPT PROCEEDINGS.

 

The deponent, National Legal Studies Institute, Inc., is further ordered pursuant to Code of Civil Procedure section 1987.2, to pay monetary sanctions to Plaintiff on or before November 20, 2014, in the amount of $1,685.00, representing the reasonable amount of attorney fees and costs incurred by the moving party in bringing the motion.  Moving Party is ordered to serve notice of this Order on all parties, and to serve both personally and by e-mail a copy of this Order on National Legal Studies Institute, Inc.

 

Plaintiff seeks an order compelling the Custodian of Records of National Legal Studies Institute, Inc., to comply with Deposition Subpoena for Personal Appearance and Production of Documents and Things, issued June 23, 2014.  According to the Proof of Service attached to the Subpoena, the subpoena was personally served on the deponent on June 24, 2014, and required the deponent to appear for deposition and produce documents on July 21, 2014.  The deponent did not appear for deposition or produce documents.  No objections were served.  The deponent agreed to appear on July 28 and produce all documents, and then canceled and did not appear.

 

The Motion is unopposed.  Plaintiff has cured the defects in service and notice of the motion.  The Court will grant the Motion to Compel Compliance with the Deposition Subpoena pursuant to Code of Civil Procedure sections 1987.1(a) and 2020.030, and order the deponent to appear for its deposition, to produce all documents responsive to the subpoena, without objection, on a date certain.  The Court orders the deponent to pay monetary sanctions to Plaintiff in the amount of $1,685.00 per section 1987.2(a).  This amount, which is equivalent to five hours of attorney time at $325.00/hour, plus $60.00 for the motion fee, is reasonable given that the motion was unopposed.  Counsel failed to provide admissible evidence in the form of an invoice reflecting the cost of obtaining a certificate of non-appearance, so this cost is denied.

 

13

Wakeem vs Long

Motion to Appear Pro Hac Vice

 

Ruling:  Off Calendar – no hearing will be held.   Defendant/Cross-Complainant Matrix Rehabilitation, Inc. dba Start Physical Therapy’s unopposed Motion to Appoint Attorney Joel M. Ferdinand as Counsel Pro Hac Vice is GRANTED.  Defendant/Cross-Complainant has met the requirements of CRC, Rule 9.40.  Moving party is to give notice.

 

The motion is granted.  Moving party has established that it has met the eligibility requirements of CRC, Rule 9.40(a) and 9.40(b). (See Declarations of Kevin McNamara and Joel Ferdinand.) Additionally, moving party has established compliance with the fee requirement under Rule 9.40(e). (See Declaration of Kevin McNamara, at ¶ 4.)  Thus, the unopposed motion to appear pro hac vice is GRANTED.

 

14

Kamel vs Sedrak

Motion for Change of Venue (Transfer)

 

Tentative Ruling:  Plaintiff Hisham Kamel’s unopposed Motion to Transfer Venue to the County of Los Angeles is GRANTED.  All parties reside in Los Angeles, and the injury occurred in Los Angeles.  Therefore, the proper venue pursuant to Code of Civil Procedure section 395(a) is the County of Los Angeles.  Moving party is to give notice.

 

The unopposed motion to transfer venue is GRANTED.  Venue rules depend on whether an action is “transitory” or “local.”  To determine whether an action is local or transitory, the court looks to the “main relief” sought. Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local. (Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 Cal.3d 477, 482; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014), at 3:457.)  Here, the main relief sought is personal, and therefore this action is transitory. 

 

For transitory actions, “Except as otherwise provided by law and subject to the power of the court to transfer ... the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395(a); see Brown v. Sup.Ct. (C.C. Myers, Inc.) (1984) 37 C3d 477, 483; Weil & Brown, supra, at 3:480.)  In addition, “If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.” (Code Civ. Proc., § 395(a).)

 

Here, Plaintiff resides in Los Angles, has now discovered that Defendant resides in Los Angeles (Decl. of Jimmy Mettias, Esq., at ¶¶ 3-4), and the injury occurred in Los Angeles.  Therefore, the proper venue is Los Angeles.  This unopposed motion to transfer venue is GRANTED.

 

15

Hyperdisk Marketing vs Costa Mesa Conference

Motion to Lift Discovery Stay to Take Depositions (pending 12-16-14 anti-Slapp motion)

 

Tentative Ruling:   As to the motion by Hyperdisk Marketing, Inc. for an order lifting the stay of discovery the Court finds that (1) Hyperdisk Marketing, Inc., has shown good cause for the limited discovery sought and, therefore, (2) grants the motion to lift the stay for the limited purpose of taking the depositions of Paulette Lombardi-Fries, Kimberly Glen, Peter L. Wucetich, Richard C. Goodman and Albert S. Israel on the issue of the advice-of counsel affirmative defense raised by Costa Mesa Conference and Visitor Bureau in its 9-3-14 amended answer.