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. 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)622-5213 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.

 

May 23, 2017

 

 

#

Case Name

Tentative

 

 

 

1

Abdelmuti Restaurant Holdings vs. Slapfish Franchise

 

16-892790

 

Motion for Order to Stay Proceedings

 

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

 

2

Baez vs. Leon

 

17-895640

 

Motion to Strike Portions of Complaint

 

Tentative Ruling:  Motion to Strike brought by Defendant Gabriela Leon is DENIED, as Plaintiff has alleged sufficient facts to support her request for punitive damages. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 899).   Defendant is ordered to file and serve an Answer within 10-days.

 

 

Pursuant to Civil Code section 3294(a), a Plaintiff may seek punitive damages for “oppression, fraud, or malice.” Section 3294(c) defines “malice” as conduct which is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, Civil Code section 3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Lackner v. North (2006) 135 Cal.App.4th 1188, offered further guidance and explained “despicable conduct” is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Id. at 1210.)

 

The leading case on punitive damages, as it relates to driving while intoxicated, is Taylor v. Superior Court (1979) 24 Cal.3d 890.  In determining whether driving while intoxicated constituted malice, Taylor offered the following guidance: “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at 892.)  Taylor explains further that: “one who voluntarily commences, and thereafter continues to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates… a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Id. at 899.)

 

Here, Plaintiff alleges Defendant “voluntarily drank alcohol beverages to the point of intoxication which sharply impaired their physical and mental abilities and at the time…knew they were going to operate a motor vehicle and…were aware from the outset of the probable consequences…” (See Exemplary Damages Attachment).

 

Further, Plaintiff alleges Defendant, in fact, operated the vehicle in that intoxicated condition. (Id.)  Last, Plaintiff alleges Defendant operated the vehicle at an excessive speed, knowing the likely consequences of such conduct. (Id.)

 

The above allegations mirror the requirements specified in Taylor and, thus, are sufficient to demonstrate despicable conduct which “consciously disregarded the safety of others.”

 

Based on the above, Plaintiff has pled sufficient facts to support her request for punitive damages and the Motion is DENIED.

 

 

3

Cito vs. Lunn

 

16-833229

 

Motion for Summary Judgment and/or SAI

 

Tentative Ruling:  No tentative ruling will be posted.  The Court will hear argument as to the sufficiency of the declaration of Anne Diroll, RN CNN CLNC, who opines that the nursing care and treatment rendered to Plaintiff by Defendant did not comply with the standard of care at all times, and that Defendant’s failure to adhere to the standard of care caused Plaintiff’s harm and injury.  (Opposition, Diroll, Decl., ¶¶ 33-55.) 

 

4

Do vs. Nova Home Health

 

15-826246

 

 

 Motion for Summary Judgment and/or SAI

 

Tentative Ruling: Plaintiff Cuong H. Do’s unopposed motion for summary judgment is GRANTED.  

 

This lawsuit was filed by Plaintiff Cuong H. Do for collection on a promissory note against Defendant Nova Home Hospice, Inc. (“Nova”), which was personally guaranteed by Defendant Eileen Cambe (“Cambe”).  The Complaint, filed on December 21, 2015, asserts COAs for breach of promissory note against Defendant Nova and damages against surety on written guaranty against Defendant Cambe.  Plaintiff now moves for summary judgment on the grounds that there is no defense to the action, there is no triable issue of material fact, and Plaintiff is entitled to judgment as a matter of law. 

 

Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment.  (Code Civ. Proc., § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)

 

“The essential elements of a claim of breach of contract, whether express or implied, are the contract, plaintiff's performance or excuse for nonperformance, defendant's breach, and the resulting damages to plaintiff.”  (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 439; see Stockton Mortg., Inc. v. Tope (2014) 233 Cal.App.4th 437, 447, 453—same elements apply to both oral and written contracts.)

 

Plaintiff submits the following evidence:

 

First COA (Breach of Promissory Note): The contract (DSS ¶¶ 1-3); Plaintiff’s performance of the contract (DSS ¶ 5); Defendant’s breach (DSS ¶¶ 4, 6-8, 10); and resulting damages to Plaintiff (DSS ¶¶ 9, 11). 

 

Second COA (Breach of Guaranty): The guaranty (DSS ¶¶ 12-15); principal’s default (DSS ¶¶ 4, 6-8, 10, 16); notification to guarantor of that default (DSS ¶ 17); and guarantor’s failure to remit funds in payment of guaranty and resulting damages (DSS ¶¶ 18-20). 

 

Plaintiff has met his initial burden.  Once the moving party has met the initial burden above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists.  (Code Civ. Proc., § 437c(p)(1) [plaintiff's motion] & (p)(2) [defense motion]; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.)

 

Defendants did not oppose this motion.  Accordingly, the motion for summary judgment is granted. 

 

Plaintiff is to give notice. 

 

5

 

Doe  vs Dual Diagnosis

 

17-898023

 

Motion to Compel Arbitration

 

Ruling:  Off Calendar – no hearing will be held.   Motion to Compel Arbitration brought by Defendant Dual Diagnosis Treatment Center, Inc. is CONTINUED to 6-27-17, Dept. C13, at 2pm.  MP to give notice. 

 

Initially, the Court finds that Defendant has not waived its right to compel arbitration.

 

Plaintiff asserts Defendant ignored her pre-litigation request for arbitration, but the instant Petition to Compel Arbitration was filed relatively early in this action.  Based on the same, there has been no showing the “litigation machinery has been substantially invoked.” (See Wagner, supra, 41 Cal.4th at 30-31).  Similarly, there has been no showing of intervening steps which undermine the efficacies of arbitration. (Id.; See also Roberts, supra, 200 Cal.App. 4th at 839).

 

At most, Plaintiff asserts a finding of waiver is appropriate, as Plaintiff has suffered prejudice due to her worsening financial situation.  This argument, however, is unpersuasive as alternative mechanisms exist to address Plaintiff’s financial situation. Additionally, per Plaintiff’s Counsel, Plaintiff requested an advance from Defendant, pursuant to Roldan, within her July demand.  Thus, the evidence suggests Defendant’s delay in pursuing arbitration did not create this issue.

 

Further, while Plaintiff asserts prejudice as Defendant has had ample time to “conceal or destroy evidence,” there has been no showing that the same occurred.

 

The Court is inclined, however, to consider Plaintiff’s argument pursuant to Roldan. Although the Court in Roldan issued its ruling following a Motion made by Plaintiff, Defendant cites to no language therein which indicates this issue may not be considered within an Opposition to a Motion to Compel Arbitration.

 

The instant Motion is CONTINUED, however, to allow Plaintiff to file a Supplemental Declaration, addressing Defendant’s concern that “[t]here is no information whatsoever about any other sources of payment, whether savings accounts, investment accounts, or any other source.” (See Reply: 6:11-14).

 

Further, the Court requests Declarations from Counsel, both Plaintiff’s Counsel and Defense Counsel, estimating the costs of arbitration in this action.  To the extent outside documents are referenced, such as the fee schedule for the American Arbitration Association, the same should be attached.

 

Plaintiff shall file her Declarations, addressing these requests, no later than June 14, 2017.   Thereafter, Defendant may respond and file its Declaration, estimating arbitration costs (or conceding Plaintiff’s estimation) no later than June 20, 2017.

 

6

Dugan vs.

Gradillas

 

16-854980

 

Motion to Continue Trial

 

Ruling:  Off Calendar – no hearing will be held.   Defendant Lisbeth M. Keplinger’s unopposed Motion for Continuance of Trial is GRANTED as follows:

 

The Court ORDERS trial continued from 9-11-17 to 1-16-18, C13, at 9 am.

 

The Court ORDERS the MSC continued from 8-25-17 to 11-15-17, C13, at 8:30 am.

 

Moving Party is to give notice.

 

7

Integrity Media vs. Friendable, Inc

 

16-867956

 

 

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

 

Tentative Ruling:  Defendants Friendable, Inc. and Robert Rositano, Jr.’s Demurrer to FAC is OVERRULED, with 10-days to Answer.

 

Demurrer to the 1st COA (breach of contract) is OVERRULED.   The court finds Plaintiff has pled sufficient ultimate facts of an agency theory of liability as to Defendant Robert Rositano, Jr.

 

The court finds Plaintiff has pled sufficient facts in support of each element for the breach of contract claim.  In addition, the court finds the factual allegations are not so bad that Defendants cannot reasonably respond. 

 

Demurrer to the 2nd COA (violation of Bus. & Prof. Code § 17200) is OVERRULED.   The court finds Plaintiff has pled sufficient ultimate facts of an agency theory of liability as to Defendant Robert Rositano, Jr.

 

Defendants contend this COA fails because the underlying breach of contract claim fails.  However, the demurrer to the breach of contract claim is OVERRULED. 

 

Prevailing party is to give notice.

 

8

Levy vs. Bonnaud

 

13-686083

 

(1) Motion for SLAPP (2) Motion for SLAPP (3) Status Conference

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  CONTINUED to 5-30-17, Dept. C13, at 2 pm. 

 

9

Liang  vs. Goodman

 

14-752667

 

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Answers to Special Irogs (3) Motion to Compel Deposition (Oral or Written) (4) Motion to Compel Production (5) Motion to Compel Response to RFAs (6) CMC

 

Tentative Ruling:  Defendants Eric J. Goodman and Goodman Mooney, LLP’s Motion to Compel Responses to First Set of Form Interrogatories, Special interrogatories and Request for Production of Documents is DEEMED MOOT.  Plaintiff, in her Opposition to Defendants’ Motion to Deem Requests for Admissions Admitted, demonstrates that the discovery responses have now been served.  

 

Defendants’ Motion to Compel Responses to First Set of Request for Admissions is DENIED.  A motion to compel responses is not the proper remedy for a party’s failure to timely serve any responses to requests for admission.  Moreover, Defendants’ motion to deem requests for admissions admitted was heard on 5-17-17.

 

Defendants’ Motion to Compel Deposition of Plaintiff Huey Jiuan Liang is GRANTED.  Plaintiff is to appear for deposition at defense counsel’s office at a date and time within 30 days after the date of this order agreed to by the parties, or at such later date as may be agreed to by the parties in writing. 

 

Defendants’ request for monetary sanction is granted.  Reasonable monetary sanctions of $1,250.00 are imposed against Plaintiff, to be paid within 60 days after the date of this order. 

 

Defendants are to serve notice of this order.

 

Defendants also improperly combined five discovery motions into one.  If Defendants paid only one filing fee of $60.00, they are ordered to pay additional $240.00 in filing fees. 

10

Newport Knolls HOA vs. Sinclair

 

15-815206

 

Motion to Be Relieved as Counsel of Record 

 

Ruling:  Off Calendar – no hearing will be held.  Ivan Paul Cohen, Esq. of Law Offices of Ivan P. Cohen’s unopposed Motion to Withdraw as Counsel of Record for Defendant Gail Ann Sinclair aka Gail Ann Nash aka Gail Ann Sinclair-Nash is GRANTED.

 

The motion is unopposed, service is proper, and moving attorney has sufficiently established a basis for permissive withdrawal.  The order will take effect on filing of proof of service on the client. 

 

Counsel is to submit another Proposed Order which reflects that an Order to Show Cause re Dismissal on Settled Case is scheduled for 5-26-17 at 8:45 AM in Department C13.

 

Moving Attorney is to give notice.

 

11

Patel vs. Apollo Managed Care

 

17-906861

 

(1) Motion to Compel Arbitration (2) Motion to Compel Arbitration (3) Petition for Writ to Inspect Corporate Records

 

Tentative Ruling:  (1-2) Motions to Compel Arbitration are DENIED. Although the Operating Agreement and Shareholder Agreements both contain arbitration provisions, it does not appear the parties have agreed to arbitrate the right to redress via mandamus. (See Corp. Code, §§1601, 1602, and specifically 1603.)  RPs are to give notice.

 

(3) CONTINUED to 6-30-17, Dept. C13, at 2 pm. 

 

12

Paul Bateman, as Trustee vs. Susan Lintz, Trustee

 

16-882620

 

(1) Motion to Transfer Case to Complex Panel (2) CMC

 

Ruling:  Off Calendar – no hearing will be held.  Trustee’s unopposed Motion to Transfer Case to Complex and the CMC are continued to 6-27-17, Dept. C13, at 2 pm. 

 

MP is to give notice.  

 

13

Roberts vs. Richard

 

16-848342

Motion for Summary Judgment and/or SAI

 

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

 

14

Yonan vs. California Department of Parks and Recreation

 

16-841378

(1) Motion to Strike Third Amended Complaint (2) CMC

 

Tentative Ruling:  Defendants California Department of Parks and Recreation (“CDPR”), Mark Allen (“Allen”), and Chris Lee’s (“Lee”) Motion to Strike  as to the Third Amended Complaint is GRANTED, without leave to amend, as follows.

 

As to Defendant CDPR, the Motion is MOOT. Plaintiff in Opposition states the allegation in paragraph 75 is only as to Defendants Allen and Lee and the prayer for punitive damages is not broken down by defendants. Plaintiff is not seeking punitive damages against Defendant CDPR.

 

As to Defendants Allen and Lee, other than conclusory allegations, there are no facts supporting the punitive damages allegations in paragraph 75 of the TAC. The allegations in paragraphs 18-21 and 24 are insufficient to support a request for punitive damages.  “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate. ….” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  “Despicable conduct” has been described as having “the character of outrage frequently associated with crime.”  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) 

 

Moving Party is to give notice.