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 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.

 

July 26, 2016

2:00 P.M.

 

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Case Name

Tentative

 

 

 

1

Colorproof Haircare, LLC vs Blackstone

 

Demurrer to Complaint

Tentative Ruling:  The demurrer to the second COA is OVERRULED.  Defendant is ordered to answer within 10 days. 

Plaintiff to give notice. 

 Defendant Dawn Blackstone (“Defendant”) demurs to the Second COA (Breach of Fiduciary Duty) on the ground it is preempted by the California Uniform Trade Secret Act. 

The Uniform Trade Secrets Act (“UTSA”) preempts common law claims for misappropriation of trade secrets.  (K.C. Multimedia, Inc. v. Bank of America Tech. & Operations, Inc. (2009) 171 Cal.App.4th 939, 954.)  Common law claims that are “based on the same nucleus of facts as the misappropriation of trade secrets claim for relief” are also preempted by the UTSA. (Id. at 985—UTSA can operate to preempt common claims such as breach of confidence, tortious interference with contract, and unfair competition.)  However, California's UTSA does not preempt other California statutes regulating trade secrets; nor does it affect “contractual remedies, whether or not based upon misappropriation of a trade secret,” or “other civil remedies that are not based upon misappropriation of a trade secret.”  (Civ. Code, §3426.7; see Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495—UTSA did not preempt claims for breach of fiduciary duty, unfair competition, interference with business relations and conversion that had basis independent of trade secret misappropriation.) 

The Complaint herein, alleges in pertinent part, as follows:

After CPHC received Plaintiff’s resignation, CPHC requested that the forensic expert conduct a preliminary forensic analysis of the image of hard drive on Plaintiff’s company computer.  (Complaint ¶ 22.)  The results of the Preliminary Analysis suggested Plaintiff accessed a large number of CPHC files, data and information, as well as accessed outside internet storage facilities, and used one or more local data storage devices on the computer.  (Ibid.)  When CPHC confronted Plaintiff about the suspicious activities, she vehemently denied any wrongdoing and thus, CPHC incurred significant additional costs to have the forensic expert conduct a more thorough forensic examination.  (Id. ¶ 23.)  The advanced analysis revealed the Plaintiff engaged in what the forensic expert refers to as a “data dump.”  (Id. ¶ 24.)  Specifically, on December 27, 2014, Plaintiff accessed, copied and/or deleted over 1,300 electronic files, and installed and ran a “history cleaner” program on her computer in an effort to cover illicit activities.  (Ibid.) 

Plaintiff breached her fiduciary duty to CPHC by, among other things, diverting resources from CPHC to herself or others for her own and/or other’s use; converting valuable sensitive date and misappropriating CPHC’s trade secrets.  (Id. ¶ 33.)  Plaintiff further breached her fiduciary duty to CPHC by destroying files such that those company documents were no longer available to CPHC.  (Id. ¶ 34.)  As a result, Plaintiff has been damaged.  (Id. ¶ 35.)

 

The allegations in the Complaint demonstrate that Plaintiffs’ breach of fiduciary duty claim is not only based on the alleged misappropriation of trade secrets, but also based on the allegation that Plaintiff destroyed CPHC’s files.  Thus, the demurrer to the second COA based on preemption is overruled. 


 

 

2

Farahani vs Tahbaz

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Answers to Form Irogs (3) Motion to Compel Answers to Special Irogs (4) Motion to Compel Answers to Special Irogs (5) Motion to Compel Production (6) Motion to Compel Production (7) Motion to Deem Facts Admitted

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

 

3

JBL Holdings LLC vs Cherna, Inc.

Motion for Summary Judgment and/or SAI

Ruling:  Off Calendar – no hearing will be held.  Continued to 8-16-16, Dept. C13, at 2 pm per stipulation of parties. 

 

4

Lopez vs Graves

Motion for SLAPP

Tentative Ruling: Motion to Strike brought by Respondents Morgan Coast Management, LLC, BT Morgan Dental Corp., Brooks T. Morgan, DDS, Inc. and Tracy Leonard is DENIED.

First, the Motion is DENIED as it was brought, solely under Code of Civil Procedure sections 436 and 435, which do not apply to Petitions for Writ of Mandate:

Pursuant to Code of Civil Procedure section 436, the Court may, upon a motion made pursuant to section 435 or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading” or strike “out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Notably, Code of Civil Procedure section 435 defines “pleading” to mean a “demurrer, answer, complaint or cross-complaint.”  Thus, by its plain language, these provision do not apply to strike a Petition for Writ of Mandate.

Additionally, pursuant to Code of Civil Procedure section 437, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

Here, Respondents improperly rely on Declarations and additional evidence, outside the scope of the Petition or the Request for Judicial Notice and, thus, even assuming these provisions apply, the Motion to Strike fails.   Respondents assert this action is an improper attempt to avoid the discovery cut-off in an underlying case; however, nothing on the face of the Pleading (or the judicially noticeable fact that another action is pending), supports this assertion.

Last, while Respondent Tracy Leonard separately moves to strike the Petition under Code of Civil Procedure sections 435 and 436, “because [the Petition] is a sham and frivolous because she is not a member or manager of any of the entities…” (See Notice of Motion: 4:7-11), the Motion offers no argument as to this point.

“Every brief should contain a legal argument with citation to 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.” (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Based on the above, as this Motion was not properly brought under Code of Civil Procedure section 425.16, all requests for attorney fees are DENIED.

Respondent’s Request for Judicial Notice is GRANTED.  The Court takes judicial notice of the existence of Case No. 30-2013-00672543 and the fact it remains pending.

 

5

Nationnal Equity Funding, Inc. vs Balsamo

Demurrer to First Amended Complaint (FAC)

Tentative Ruling:  Defendant Salvatore J. Balsamo and Sal’s Propane, Inc’s demurrer to the 2nd and 3rd COAs are sustained with 20 days leave to amend. All parties are ordered to meet and confer prior the filing of any demurrer to the SAC.  (Code Civ. Proc., §430.41.)  MP is to give notice.

 

2nd COA (Breach of Contract):  There are two agreements in this case. The first is an Exclusive Broker Agreement wherein Owners (Defendants) agreed Broker (Plaintiff) would be Defendant’s sole representative to obtain funding during a specific period of time. The parties to that agreement (attached to the FAC as Exh. A) are National Equity Funding, Inc and Sal’s Propane, Inc., signed by their respective officers. This agreement specifically states, “Should Owner accept funding by any other funding source not introduced by Broker, Owner understands it is liable and shall pay Broker its fee.” This Exclusive Broker Agreement is the subject of the 1st COA for Breach of Contract (which has not been demurred to).

The 2nd agreement (attached to the FAC as Exh. B) is the Fee Agreement. It was entered into by National Equity Funding, Inc and by Sal’s Propane Inc., and Salvatore J. Balsamo, personally. Section D. of that Fee Agreement states, “Owner agrees to pay and hereby irrevocably assigns to Broker, a fee in the amount of 2.0% of the gross amount of any loan consummated between Owner and Broker or its affiliates or assigns or a NEF lender plus a processing fee of $1995.00 (included with “fee).”

It is clear in terms of this agreement, Balsamo is only liable to pay fees (personally) if a loan is consummated between Owner and Broker or its affiliates or assigns or a NEF lender.

However, Plaintiff has not pled that this particular condition precedent actually occurred. Rather, Plaintiff pleads that “Plaintiff has taken all necessary steps to complete its obligations under the Fee Agreement, but Plaintiff’s completion of its performance under the Fee Agreement was intentionally prevented by Defendants’ actions in breaching the Fee Agreement when Defendant Balsamo and Defendant Company completed a loan with a third-party lender in July, 2015.” (FAC ¶22.)

However, Defendants did not really breach the “Fee Agreement” when they obtained funding from a 3rd party, but rather, breached the Exclusive Broker Agreement. It appears the only way the Defendants could breach the Fee Agreement is if they failed to pay fees on a loan “consummated between Owner and Broker…”, which did not occur.

3rd COA (Fraud):  As to the 3rd COA for Fraud against Balsamo, it is unclear whether Plaintiff is alleging misrepresentation, concealment, false promise, etc. Plaintiff appears to contend that Defendants never intended to pay on the contracts, but instead used Plaintiff to get Defendant qualified for a loan.  (See FAC¶27.)  In the Opposition. Plaintiff contends the misrepresentation was that “Defendant Balsamo continued to represent to Plaintiff and its agents that Defendant Company wanted to complete the loan with Plaintiff and its lender.”  (FAC ¶30.)

This is confusing. Is the fraud in the nonperformance on the contract, or the misrepresentation that Defendants wanted to complete the loan? All elements of a fraud claim must be specifically pled. There are insufficient facts pled to support this COA with the requisite specificity, and the Demurrer is sustained with leave to amend.

 

6

Parnell vs South Orange  County Community College District

Motion for Summary Judgment and/or SAI

Ruling:  Off Calendar – no hearing will be held.

7

Schwartz vs Select Portfolio Servicing, Inc.

Demurrer to Complaint   

Tentative Ruling:  Defendants Select Portfolio Servicing, Inc. (“SPS”) and Quality Loan Service Corporation’s (“QLS”) Demurrer to Plaintiffs Jeff and Sandra Schwartz’ Complaint is SUSTAINED, with 20 days leave to amend, as to the 1st through 3rd COAs and OVERRULED as to the 4th COA as follows.

 

As to the 1st COA (declaratory relief), the Complaint fails to allege facts from which the court may determine that an actual controversy relating to the legal rights and duties of the respective parties exists. (Lord v. Garland (1946) 27 Cal.2d 840, 851.) Although paragraph 30 of the Complaint alleges Defendant SPS scheduled a trustee’s sale of the property for 3-11-16 “despite no longer being trustee,” Exhibit G to the Complaint (referred to in paragraph 30) states Defendant SPS “as mortgage servicer” is notifying Plaintiffs of the trustee sale. “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App. 4th 1443, 1447.) The Complaint does not allege an actual controversy exists between Plaintiffs and Defendant SPS.

As to the 2nd and 3rd COAs (breach of contract and breach of covenant of good faith and fair dealing), the Complaint does not allege the existence of an agreement between Plaintiffs and Defendant SPS. The Complaint does not allege Defendant SPS is liable as a principal upon the contract and does not allege Defendant SPS was/is an agent and/or principal of Chase Bank. Paragraph 6 only alleges that Defendants were the agents of each other.

As to the 4th COA (violation of Civil Code section 2923.6(c)), the Complaint does allege in paragraph 68(b) that Plaintiffs submitted a complete loan modification application.

The Court takes judicial notice of Exhibits of Exhibits 1, 6, and 7-10 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.) The Court takes judicial notice of Exhibits 2-5 pursuant to Evidence Code section 452(c) and (h). The court takes judicial notice of the existence of these documents and their legal effect.  Although the court takes judicial notice of the existence of the documents and the clear legal effects, the court is not required to accept the truth of the matters which might be deduced therefrom. (See Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.)

Moving Party is to give notice.

 


 

 

8

Scilabs Nutraceuticals, Inc. vs Luberski, Inc.

(1) Motion for Terminating Sanctions (2) OSC re Dismissal (3) Review Hearing

Ruling:  (1-3) Off Calendar – no hearing will be held.  Defendant/Cross-Complainant Luberski, Inc. dba Hidden Villa Ranch’s unopposed Motion for Terminating Sanctions against Plaintiff/Cross-Defendant Paul Edalat and the OSC Re Dismissal and Review Hearings are CONTINUED to 8-23-16, Dept. C13, at 2 pm.  The Proof of Service lists Mr. Edalat’s address as 401 Rockefeller, #1201, Irvine, CA 92612.  This is not Mr. Edalat’s address on the court’s record.  The address on the court’s record is 17809 Gillette Ave., Irvine, CA 92614.  The hearing is therefore CONTINUED to 8-23-16, and moving party is to serve a Notice of Continuance at both addresses and file a proof of service reflecting the same by 8-1-16.  Moving party is to give notice.

 

9

Signal Restoration West. LLC vs Williams

Motion to Add Prejudment Interest

Ruling:  Off Calendar – no hearing will be held.  The unopposed motion to add prejudgment interest is granted.  The Judgment herein is corrected nunc pro tunc to reflect prejudgment interest in the amount of $13,309.82.   MP is to give notice. 

 

The Court must award prejudgment interest upon request, which should be made before entry of judgment or by way of a motion for new trial. In this case, the Judgment was executed by the Court on 4-8-16. There was no request or blank space for prejudgment interest in the Proposed Judgment.

This Court continued Plaintiff’s Motion for Prejudgment Interest for supplemental briefing on the limited issue of “whether this Court can amend the judgment to include prejudgment interest after entry of judgment or whether moving party must file a motion for new trial, if it is not already too late.”  (See 6-7-16 Minute Order.)

On 7-18-16, Plaintiff filed a supplemental brief as ordered. Plaintiff argues the Court has the inherent power to enter or amend the judgment nunc pro tunc in order to avoid injustice, and Plaintiff requests that the Court do so by amending the judgment to include the pre-judgment interest as requested, in order to avoid the unnecessary use of additional judicial resources with a motion for new trial on the ground of inadequate damages pursuant to Code of Civil Procedure section 657(5) and a new trial.

Concerning such a motion for new trial, it is not too late because the deadline for such a motion is 180 days from judgment if no “notice of entry of judgment” has been served. (Code Civ. Proc., §659(a)(2).) In this case, the judgment was entered April 8, 2016 and no “notice of entry of judgment” has been served; therefore, the deadline to file a motion for new trial pursuant to section 657(5) is October 5, 2016.

Courts have inherent power to enter and/or correct a judgment nunc pro tunc to the time it should have been entered—i.e., to backdate the judgment— to avoid injustice. (Rutter at ¶ 17:90.12.) The court also has the power either on motion of a party or sua sponte to “correct clerical mistakes in its judgment ... so as to conform to the judgment ... directed.” CCP §473(d); APRI Ins. Co. v. Sup.Ct. (Schatteman) (1999) 76 Cal.App.4th 176, 185. Where “clerical error” is shown, the judgment is corrected nunc pro tunc; i.e., the correction dates back to when the judgment was entered. Ames v. Paley (2001) 89Cal.App.4th 668, 673; Bell v. Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144. Clerical error refers to inadvertent errors in entering or recording the judgment. In re Candelario (1970) 3 Cal.3d 702, 705; see Bell v. Farmers Ins. Exch., 135 Cal.App.4th at 1144. “When a signed judgment does not reflect the express judicial intention of the court, the signing of the judgment involves clerical rather than judicial error.” Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151. The error may be attributable to the clerk, counsel or the court itself.  Ames v. Paley, 89 Cal.App.4th at 672. Where the judgment was prepared by an attorney, the attorney’s mistake in recording the terms ordered by the court was “clerical error” correctible under CCP § 473(d). Marriage of Kaufman,101 Cal.App.3d at 151. Errors in omission of interest or costs are “clerical” errors which can be corrected. McLellan v. McLellan (1972) 23 Cal.App.3d 343, 358 (inadvertent omission of costs award to plaintiff). The court may correct clerical mistakes on its own motion or on motion of any party. CCP § 473(d). Clerical error, unlike judicial error, is correctable at any time: “The error was clerical, and despite the lapse of two and a half years, it remained correctable.” (Marriage of Kaufman (1980) 101 Cal.App.3d 147.)

Here, Plaintiff moved for summary judgment and prejudgment interest, which was unopposed. (Harter Decl. ¶ 2.)  On February 16, 2016, the Court ruled it was granting summary judgment but denied the request for prejudgment interest without prejudice, finding the contract on which Plaintiff relied to calculate prejudgment interest was not properly authenticated.  (Harter Decl. ¶ 2; Exhibit 2, 2-16-16 Minute Order.)  Notwithstanding, the Court also ruled the evidence demonstrated through requests for admission that were deemed admitted that Defendant Williams admitted that she entered into the December 4, 2013 contract which contained the agreement to pay interest.  (Harter Decl. ¶ 2; Exhibit 2, 2-16-16 Minute Order.)  Accordingly, February 17, 2016, Plaintiff submitted the declaration of Corey Ennen authenticating the contract with a proposed judgment that included interest. (Harter Decl. ¶ 3; Exhibit 3, 2-17-16 Declaration of Cory Ennen in Support of Prejudgment Interest on Summary Judgment; Exhibit 4, 2-17-16 Proposed Judgment.)  The Court rejected the proposed judgment requiring Plaintiff to file a motion for prejudgment interest. (Harter Decl. ¶ 4.)  Therefore, on March 3, 2016, Plaintiff filed this motion for prejudgment interest.  (Harter Decl. ¶ 4.)  However, on March 3, 2016, Plaintiff also mistakenly submitted a proposed judgment and inadvertently omitted prejudgment interest which was a clerical error on Plaintiff counsel’s part. (Harter Decl¶ 4; Exhibit 5, 3-3-16 Proposed Judgment.) Prior to the hearing on Plaintiff’s motion for prejudgment interest, the Court entered the Judgment on April 8, 2016 which did not contain prejudgment interest. (Harter Decl. ¶ 4.)

For all the foregoing reasons, Plaintiff Signal Restoration Services respectfully requests that the Court grant the motion for prejudgment interest and enter it in the amount of $13,309.82 on the judgment nunc pro tunc.

Given the authority presented, the Court grants the unopposed motion for prejudgment interest and corrects the judgment nunc pro tunc to reflect the additional of $13,309.82 in prejudgment interest.


 

 

10

Williams vs Deutsche Bank Trust Co.

 

 

 

(1) Demurrer to Second Amended Complaint (SAC) (2) Motion to Strike (3) CMC

Ruling:  (1-3) Off Calendar – no hearing will be held.  Continued to 8-23-16, Dept. C13, at 2 pm per stipulation of parties.