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 BE 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: 09/02/14

 

 

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Case Name

Tentative

 

 

 

1

Aparicio vs Cristiana Bay Townhouses

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

 

Tentative Ruling:  (1) Motion to Compel Further Responses to Form Irogs is GRANTED, in part.  Plaintiff is ordered to provide further, verified, responses to Defendant Christiana Bay Townhouses, Inc.’s Form Irogs, Set One, Nos. 6.4, 6.5, 6.7, 8.2, 11.2 and 12.6, within 15 days of this order.

 

A review of Plaintiff’s responses to Form Irogs Nos. 6.4, 6.5, 6.7, 8.2, 11.2 and 12.6, confirms each response is incomplete or inadequate.   Initially, the objection based on “invasion of privacy,” asserted against Irogs Nos. 6.4 and 6.5 fails:  As Plaintiff is seeking to recover for physical injuries (See ¶13 and ¶15 of the FAC), and the requests are limited to the subject incident, Plaintiff’s right to privacy as to this information has been waived. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068.)

 

Additionally, Plaintiff’s invocation of Code of Civil Procedure section 2030.230 is insufficiently specific to satisfy this provision:  Plaintiff is required to provide “sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Code Civ. Proc., §2030.230.)  Further, Plaintiff’s responses to Irogs Nos. 6.7, 8.2, 11.2 and 12.6 each fail to fully respond to all included subsections. Plaintiff continuously fails to provide names, addresses, dates and descriptions, as requested.  Moreover, pursuant to Code of Civil Procedure section 2030.250(a), Plaintiff is required to provide verifications.

 

Defendant’s request for sanctions is DENIED, as Defendant failed to include the request for sanctions within the Notice of Motion, as required by Code of Civil Procedure section 2023.040.

 

(2) Motion to Compel Further Responses to Special Irogs is GRANTED, in part.  Plaintiff is ordered to provide further, verified, responses to Defendant Christiana Bay Townhouses, Inc.’s Special Irogs, Set One, Nos. 10, 29, 33, 34 and 35, within 15 days of this order.

 

Again, a review of Plaintiff’s responses to Special Irogs Nos. 10, 29, 33, 34 and 35, confirms each response is incomplete or inadequate.   Plaintiff’s response to Special Interrogatories Nos. 10 and 33 are evasive, as Plaintiff merely states “not applicable.” To the extent Plaintiff is conceding the requested information does not exist, Plaintiff must so state. Moreover, Plaintiff’s responses to Special Interrogatories Nos. 29, 34 and 35, insufficiently invoke Code of Civil Procedure section 2030.230, by failing to sufficiently identify the referenced documents and improperly referring Defendant to other sources.

 

“Answers must be complete and responsive.  Thus, it is not proper to answer by stating, ‘See my deposition’, ‘See my pleading’, or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784.)

 

Thus, as Plaintiff’s responses are not “fully responsive” as required, an order compelling further responses is justified. Similarly, verification is required pursuant to Code of Civil Procedure section 2030.250(a).

 

Last, however, Defendant’s request for sanctions is DENIED, as Defendant failed to include the request for sanctions within the Notice of Motion, as required by Code of Civil Procedure section 2023.040.

 

(3) Motion to Compel Further Responses to Request for Production is GRANTED, in part.  Plaintiff is ordered to provide further, verified, responses to Defendant Christiana Bay Townhouses, Inc.’s Request for Production, Set One, Nos. 5, 10, 14 and 15, within 15 days of this order.  

 

Plaintiff’s responses to Requests Nos. 5, 10, 14 and 15 failed to comply with Code of Civil Procedure section 2031.230, as Plaintiff did not affirm that a diligent search occurred, specify the basis of the inability to comply, or indicate whether the requested documents are in the possession of another.

 

The Motion is DENIED, however, with respect to Request No. 11.  Request No. 11 states: “Please produce all DOCUMENTS which evidence the monies that YOU were earning on a weekly or monthly basis for the two years prior to the accident giving rise to this litigation, including but not limited to banking records, pay checks, pay stubs, W2 forms, etc.”   In response, Plaintiff stated: “Objection. Invasion of privacy.  Plaintiff will sign an authorization to release employment records.”

 

Defendant asserts this objection is without merit, as “Plaintiff contends that she suffered loss of earnings and earning capacity as a result of the incident.” (See Separate Statement, Request No. 11.)  While Defendant is correct, that a request for lost wages would be sufficient to place Plaintiff’s wages in issue, and constitute a waiver of her right to privacy therein, no such request for relief could be located in the Complaint. (See GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 753.)

 

Importantly, “the right to privacy extends to one’s confidential financial affairs.” (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.)  Further, "[t]he burden is on the party seeking the constitutionally protected information to establish direct relevance." (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)  

 

Based on all of the above, absent a showing that this information is directly relevant to this action or “necessary for a fair resolution of the action,” the Court cannot order its production over Plaintiff’s privacy objection.  Absent a clear showing Plaintiff is seeking lost wages, this standard cannot be met.

 

Additionally, based on the above, Defendant has failed to “set forth specific facts showing good cause justifying the discovery sought by the demand,” as required by Code of Civil Procedure section 2031.310(b)(1). 

 

Last the Court is inclined to GRANT the Motion, as to Requests Nos. 1-4, 6-9 and 12-13, in the event Counsel appears and attests that documents and verifications have not been produced.

 

The remainder of Plaintiff’s responses indicate discovery was served on April 2, 2014. (See Requests Nos. 1-4, 6-9 and 12-13); however, Defendant’s Motion asserts no documents were received.

 

As to the remainder, the Motion is akin to a Motion to Compel Compliance, under Code of Civil Procedure section 2031.320. Importantly, however, Defense Counsel failed to declare that no documents have been produced. Absent evidence that no documents were produced, it is unclear that this Court can compel production, under Code of Civil Procedure section 2031.320. 

 

Further, pursuant to Code of Civil Procedure section 2031.250(a), “[t]he party to whom the demand for inspection, copying, testing or sampling is directed shall sign the response under oath unless the response contains only objections.” Again, Defense Counsel fails to declare that no verifications were received.

 

Defendant’s request for sanctions is DENIED, as Defendant failed to include the request for sanctions within the Notice of Motion, as required by Code of Civil Procedure section 2023.040.

 

2

Justiniani vs Berg

Motion to Compel Production 

 

Ruling:   Off Calendar – no hearing will be held.   Continued by MP to 9-30-14, Dept. C13, at 2 pm.

3

Batistic vs City of Placentia

(1) Demurrer to Complaint (2) Motion to Strike (3) CMC

 

Ruling:   (1-3) Off Calendar – no hearing will be held.   (1) Demurrer by defendants, City of Placentia and Officer J. Ferrell, is sustained in its entirety with 20 days leave to amend, pursuant to Code of Civil Procedure section 430.10(e).   Demurrer by defendant, Placentia Police Department, which is not a separate entity from the City of Placentia, is sustained without leave to amend.  Plaintiff did not oppose the Demurrer by the Police Department, which the Court interprets as a concession by Plaintiff that the Demurrer has merit and an abandonment of the claims as to that party.    Defendants’ RFJN of Plaintiff’s DUI conviction is denied as irrelevant to the issues raised by the Demurrer. 

 

The allegations in the Complaint that Plaintiff was “chased, grabbed, arm barred, and taken to the ground” by Ferrell “before being taken into police custody” and that he had not “committed any act of aggression or used any force” against the police (Compl. ¶¶ 6-7) are insufficient to state a claim against Officer Ferrell, and the City as his employer, for excessive force.  During an arrest, an officer may use a reasonable amount of force, which “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”  (Pen. Code, § 835a; Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1972-1274.)  However, officers do have a duty to refrain from unreasonable use of force, and may be held liable in tort should they violate that duty.  (Edson v. City of Anaheim, supra.)  Here, the Complaint simply fails to allege facts showing Officer Ferrell used an unreasonable amount of force in effectuating Plaintiff’s arrest. 

 

The new facts alleged by Plaintiff in his Opposition -- that  Officer Ferrell “twisted” Plaintiff’s arm “with such extreme force that he sustained multiple ligamentous tears in the left elbow” (Opp. 3:18-19) -- are extrinsic to the Complaint and cannot be considered in assessing the demurrer.

 

Leave to amend, however, is granted.  Contrary to defendants’ arguments, the City can be held vicariously liable under various state law tort theories and Civil Code section 52.1 if Plaintiff can plead and prove that Officer Ferrell used an unreasonable amount of force and is not entitled to immunity.  (Govt. Code, § 815.2; CACI 1305 (battery by peace officer); Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269 (battery), 1972-1274; Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 534-535 (battery and negligence); Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 [holding trial court erred in removing the issue of negligence from the jury, even though inconsistent with allegations of intentional conduct];  Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1094-1101 [“[T]he jury also must have concluded that the use of deadly force was negligent, a legal theory we also find legally and factually sustainable”];  Burns v. City of Redwood (N.D. Cal. 2010) 737 F.Supp.2d 1047, 1065 [applying California law and holding that state law claim under Bane Civil Rights Act can be stated based on excessive force]; Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 264 [“California cases have consistently held that a peace officer making an arrest is liable to the person arrested for using unreasonable force”].)     Moving Party is to give notice.

 

(2) Defendants’ Motion to Strike is granted as to the phrases “probable cause” and “reasonable suspicion.” (Compl. ¶¶ 13, 27.)   Plaintiff acknowledges no claim is being made relating to the lawfulness of the arrest.  Plaintiff concedes the case involves alleged excessive force, not any contention that his arrest was unlawful.  The Motion to Strike is granted as to the request for punitive damages against defendant City of Placentia only, and denied as to the request for punitive damages against Officer Farrell.    (3) CMC is continued to 10-21-14, Dept. C13, 8:45 am.    MP is to give notice.

4

Pride Acquisitions LLC vs Dang

(1) Motion for Order Substituting Unifund CCR, LLC as real party in interest (2) CMC

 

Ruling:   (1-4) Off Calendar – no hearing will be held.  Motion for Order substituting Unifund CCR, LLC as the real party in interest is GRANTED per Code of Civil Procedure section 368.5. The caption of the matter herein is to be changed to identify Unifund CCR, LLC as successor-in-interest to Pride Acquisitions, LLC, as the Plaintiff herein; and all future filings in the case shall identify Unifund CCR, LLC, as plaintiff herein.

 

(2) CMC is continued to 10-21-14, Dept. C13, at 8:45 am. 

 

MP is to give notice.

 

 

If during the course of the lawsuit, Plaintiff or Defendant transfers his or her interest therein to another, the Court may allow the transferee to be substituted as a party to the action, OR, the action may be continued in the name of the original party.  (Code Civ. Proc., §368.5; Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 121.)

 

Here, the Declaration of Jessica Stevens ¶3 and 4, Exhs. A & B establish that Plaintiff Pride Acquisitions, LLC sold to Pilot Receivables Management LLC defendant’s account which was then assigned to Unifund CCR, LLC.

5

Zwierlein vs Glazer

(1) Demurrer to Fourth Amended Complaint (4AC) (IV Solutions) (2) Demurrer to 4AC (Saddleback) (3) CMC

 

Ruling:   (1-3) Off Calendar – no hearing will be held.  (1) Demurrer to 4AC (IV Solutions) is OVERRULED.  Defendant shall file and serve an Answer to the Complaint, within 10 days of this order.

 

A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.  (Boy Scouts of America Nat. Foundation v. Superior Court (2012) 206 Cal.App.4th 428, 438.) “In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint.” (Id. at 438-439.)   Defendant asserts Plaintiff’s claim is barred, as it was not commenced within one-year of Plaintiff’s discovery of his injury; however, pursuant to Rose v. Fife (1989) 207 Cal.App.3d 760, (as cited by Defendant) “[t]he one-year period commences when the plaintiff is aware of both the physical manifestation of the injury and its negligent cause.” (Id. at 768.)  Put another way, "it is not enough to commence the running of the limitations period when the plaintiff knows of her injury and its factual cause (or physical cause).” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1057 citing Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1114.)  “Rather, the plaintiff must be aware of her injury, its factual cause, and sufficient facts to put her on inquiry notice of a negligent cause.” (Id.)

 

Thus, while the Complaint alleges Plaintiff began to experience symptoms of Gentamicin poisoning in January of 2011 (See ¶12 of 4AC), this allegation is insufficient to trigger the one-year statute of limitation articulated in Code of Civil Procedure section 340.5.

 

Defendant points to no allegations in the Complaint, which “clearly and affirmatively” demonstrate Plaintiff was aware of, or should have been aware of, the negligent cause of his injury and/or Defendant’s wrongdoing.  While Defendant references the allegation that Dr. White communicated to Plaintiff in January of 2011, that he “did not see any medical reason to further administer the antibiotic,” (See ¶12 of 4AC), this statement is insufficient to communicate a negligent cause for Plaintiff’s injuries.  Rather, the Complaint clearly alleges Plaintiff first became aware of the possibility of Gentamicin poisoning, sometime after March 23, 2011, when Plaintiff received a written report from Dr. Baloh. (¶15 of 4AC.)  Taking into consideration the allegation Plaintiff did not discover the negligent cause of his injury until late March/April of 2011, and taking into consideration the holding of Woods v. Young (1991) 53 Cal.3d 315, which found that Code of Civil Procedure section 364(d) tolls the statute of limitation for 90 days, Plaintiff’s Complaint, filed on June 22, 2012 appears timely.

 

Defendant’s RFJN is GRANTED; however, the Court finds the allegations in the 4AC do not conflict with the allegations in the SAC: The 4AC clearly alleges the diagnoses was not communicated to Plaintiff, until after April, while the SAC contains no allegation referencing communication of the diagnoses.

 

(2) Demurrer to 4AC (Saddleback) is OVERRULED, for the same reasons specified above. Defendant shall file and serve an Answer to the Complaint, within 10 days of this order.

 

While the Complaint alleges Plaintiff began to experience symptoms of Gentamicin poisoning in January of 2011 (See ¶12 of 4AC), this allegation is insufficient to trigger the one-year statute of limitation articulated in Code of Civil Procedure section 340.5. (Rose v. Fife (1989) 207 Cal.App.3d 760, 768; See also Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1057 citing Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1114.)

 

While Defendant Saddleback attempts to distinguish from these authorities, the cases defendant relies on are unavailing, as each acknowledges the necessity of a suspicion of wrongdoing. (See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102 and Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)

 

Defendant points to no allegations in the Complaint, which “clearly and affirmatively” demonstrate Plaintiff was aware of, or should have been aware of, the negligent cause of his injury and/or Defendant’s wrongdoing.  Rather, the Complaint clearly alleges Plaintiff first became aware of the possibility of Gentamicin poisoning, sometime after March 23, 2011, when Plaintiff received a written report from Dr. Baloh.  (¶15 of 4AC.)

 

Taking into consideration the allegation Plaintiff did not discover the negligent cause of his injury until late March/April of 2011, and the holding of Woods v. Young (1991) 53 Cal.3d 315, which found that Code of Civil Procedure section 364(d) tolls the statute of limitation for 90 days, Plaintiff’s Complaint, filed on June 22, 2012 appears timely.

 

(3) CMC is continued to 10-21-14, Dept. C13, at 8:45 am.

 

6

Ree vs Andrews

(1) Motion for SLAPP (2) Demurrer to Complaint

 

Tentative Ruling:   (1) Defendants’ Motion to Strike the Complaint and all causes of action therein, pursuant to Code of Civil Procedure section 425.16 is GRANTED.

 

The anti-SLAPP statute requires a two-step analysis.  First, the defendant must make a prima facie showing that the plaintiff's cause of action arises from an act by defendant in furtherance of the right of petition or free speech. (Code Civ. Proc., § 425.16(b)(1); Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 21; Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)  Once the defendant makes a prima facie showing of protected activity under section 425.16, the burden then shifts to plaintiff to establish, as a matter of law, that no such protection exists. (Code Civ. Proc., § 425.16(b); Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) 

 

If that first prong is met, the burden shifts to plaintiff to demonstrate a probability of prevailing: the claim shall be stricken unless the plaintiff can establish a probability that the plaintiff will prevail thereon. (Code Civ. Proc., § 425.16(b)(1); Navellier v. Sletten, supra, 29 Cal.4th at 88.)  To do so, the plaintiff must present admissible evidence, and cannot just rely on the allegations in its complaint. (Roberts v. LA County Bar Ass’n (2003) 105 Cal.App.4th 604, 613 to 614.)

 

Here, the Complaint, and each cause of action therein, is premised upon the commencement and prosecution of litigation. (See e.g. Complaint, ¶¶ 15-30 and 38, 45, 47, & 55.)  The action thus meets the first prong of the anti-SLAPP statutory scheme, under Code of Civil Procedure section 425(e)(1) and (e)(2), as the action and all claims therein arise out of statements or writings made in judicial proceedings or in connection therewith. 

 

The burden thus shifted to Plaintiff to establish a probability of prevailing. Plaintiff has failed to meet that burden, as he has proffered no evidence to make a prima facie showing of facts sufficient to sustain a favorable judgment.  At best, the Opposition offers only unsupported argument.   

 

Nor does it appear Plaintiff could have defeated the Motion on the merits in any event. For the Fifth COA, the evidence submitted by Defendant (see RFJN Exh. 7) appears to establish that the underlying action was not terminated in a manner that indicated defendant’s innocence: instead it was dismissed for a failure of counsel to appear after a claim of illness had been made.  That is insufficient to support the cause of action. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.)  The remaining causes of action appear barred by the collateral estoppel doctrine (see RFJN Exhs. 1-6), and/or the litigation privilege of Civil Code section 47(b).

 

Leave to Amend: Leave to amend is not available to avoid the first prong of the SLAPP statute.  When a SLAPP motion is granted, the court may not grant leave to amend to allege (or omit) facts demonstrating the complaint is not subject to the statute.  (Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2014) §7:1076; see also Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing: the statute makes no provision for amending the complaint if the court finds the statute applies, and no such right should be implied] and Schaffer v. City & County of San Francisco (2008) 168 Cal.App.4th  992, 1005 [granting leave to amend would thwart the purposes of §425.16].)

 

Leave to amend may be allowed for the second prong, to show the probability of plaintiff prevailing on the merits, based on evidence submitted in opposition to the anti-SLAPP motion.  (Weil & Brown, supra,  §7:1076.5.)  Here, however, no evidence was submitted by Plaintiff, and no such showing has been made. Leave to amend does not appear proper here.

 

Nor does it appear that Plaintiff could have defeated the Motion on the merits in any event, for the following reasons:

 

Illegality: Plaintiff argues in his Opposition (pp. 4-5), that a SLAPP Motion cannot succeed where the speech at issue was illegal, citing Flatley v. Mauro (2006) 39 Cal.4th 299.  But Flatley held that where a defendant brings a motion to strike under section 425.16 and either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law (there, criminal extortion), defendant is precluded from using the SLAPP statute to strike the claim. (Id. at 320.) 

 

No such facts exist here.  Defendants do not concede they acted unlawfully in bringing the Prior Action, or any other.  To the contrary, they contend their claims were made entirely in good faith. (Ambrosio Decl. ¶¶ 10-14; Andrews Decl. ¶¶ 10-13.)  Nor is there any evidence presented to conclusively establish that their activities were illegal as a matter of law. That argument thus fails here. 

 

Collateral Estoppel: Defendants also contend that the 1st – 4th COAs are barred by the collateral estoppel doctrine because they are essentially identical to claims previously adjudicated on the XC in the Prior Action.  That appears to be true.

 

In the Prior Action, a demurrer re the XC was sustained.  Most of the claims were then abandoned when the XC was amended: the last claim that remained in the SAXC was for abuse of process.  That claim was defeated when an unopposed SLAPP motion was granted: the XC was dismissed with prejudice and judgment entered accordingly. (RFJN Exhs. 1-6.) 

 

The instant claims, to the extent they could have been brought by CYT, were thus adjudicated in the prior action. To the extent that Plaintiff here makes essentially the same claims as “Assignee” of CYT, they are also barred.  (The Court notes Plaintiff did try to also state the same claims as a “taxpayer” here, but has not demonstrated in the Opposition that he has standing to do so – nor does it appear he could prevail on such claims anyway for the other reasons stated herein.)

 

Plaintiff argues in the Opposition that CYH and Ree did not oppose the SLAPP Motion in the underlying case because they had decided to instead file this lawsuit, and that additional allegations have been made in the instant action anyway. (Opp. pp. 2-3 & 6.)  But neither argument suggests that the instant claims would not be barred here based on the prior judgment, as a decision not to oppose the motion does not change the fact that it was decided on the merits, and none of the “new” allegations here change the gravamen of the claims.

 

Litigation Privilege: Defendants also contend these COAs are also barred by the litigation privilege in Civil Code section 47(b) in any event.  That appears to be true as well, as the litigation privilege applies to virtually every COA except malicious prosecution.  (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 824 [finding §47b to apply to abuse of process claims].) Therefore, to the extent these COAs are based on filing lawsuits and related conduct they are absolutely barred. 

 

The Complaint here does allege that Defendants also engaged in improper pre-litigation conduct in seeking out targets to sue, which might not be subject to the litigation privilege. However, it was Plaintiff’s burden in his Opposition to demonstrate the litigation privilege does not apply. (See Flatley v. Mauro, supra, 39 Cal.4th 299, 323 [litigation privilege is substantive defense plaintiff must overcome to demonstrate probability of prevailing].)  He failed to meet that burden.  He attempted in his opposition to avoid the litigation privilege only by claiming that it does not apply to pre-litigation threats that constitute extortion. (Opp. p. 5.) But no such facts were alleged here, nor was any such showing made.

 

The Malicious Prosecution claim: For the malicious prosecution claim, Defendants note that the prior action was dismissed without prejudice, and not decided on the merits. (RFJN Exh. 7.)  That also appears to be true.

 

Per Defendants’ RFJN Exh. 7 (a 4-2-13 M.O.), the complaint in the Prior Action was dismissed without prejudice on the day of trial, as Plaintiff’s counsel was allegedly ill and requested (through a specially appearing attorney) a continuance, but the court declined that request. She was directed to call trial counsel: when no one had reported back by 10:30 am, the case was dismissed without prejudice. 

 

Three elements must be pleaded and proved to establish the tort of malicious prosecution: (1) A lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in plaintiff's favor; (2) the prior lawsuit was brought without probable cause; and (3) the prior lawsuit was initiated with malice.  (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.) The basis of the favorable termination element is that the resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff's innocence: when prior proceedings are terminated by means other than a trial, the termination must reflect on the merits of the case and the malicious prosecution plaintiff's innocence of the misconduct alleged in the underlying lawsuit. (Id. at 217.)

 

Here, the Prior Action, as to Ambrosio’s claims, was not resolved on the merits in CYT’s favor.  Instead, it was dismissed without prejudice due to the failure of lead counsel to appear when allegedly ill.  That does not tend to indicate CYT’s innocence.  The first element of this claim thus is not - and evidently cannot  -- be met. Plaintiff here thus cannot establish a probability of prevailing on the merits of the claim. 

 

For all of these reasons, the Court will GRANT the instant Motion. 

 

Defendants’ unopposed Request for Judicial Notice is GRANTED.

 

Attorney fees are awarded to Defendants pursuant to Code of Civil Procedure section 425.16(c) for fees incurred for time spent specifically on the anti-SLAPP motion,  in the amount of $2,250, to be paid by Plaintiff Jin Ree to Defendant Faustino Ambrosio, through his counsel of record, within 30 days.

 

(2) In light of the ruling on the Motion to Strike, the Demurrer is MOOT.

 

Moving Parties are to give notice.  

7

Genesis Commercial Capital vs Bartlett-Germantown

(1) Demurrer to Complaint (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  Specially Appearing Defendants Bartlett-Germantown Funeral Home, Inc., Alfred Tacker and Cindy Phillips’ demurrer and motion to dismiss is denied as follows:

 

(1) Demurrer based on another action pending (Code Civ. Proc., §430.10(c)) is overruled.   This is a plea in abatement: “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.” (Plant Insulation Co. v. Fireboard Corp. (1990) 224 Cal.App.3d 781, 789.)                   

 

The demurrer is overruled for two reasons. First, MP failed to ask the Court to take judicial notice of the Tennessee Action. Rather, it was attached to Attorney Montes’ Declaration as Exh. C.   Second, even if MP properly sought judicial notice of the Tennessee complaint, it is clear the parties do not stand in the same relationship (as plaintiff and defendant) in the both suits.  (Id., at 789.)  Plaintiff in this action is Genesis Commercial Capital, LLC and the Plaintiffs in the Tennessee action are Bartlett-Germantown Funeral Home, Inc., Alfred T. Tacker, and Cindy Phillips.  Both cases involve the same transaction, but the causes of action are not the same. The identical causes of action must be involved in both suits.  (Bush v. Sup.Ct. (Rains) (1992) 10 Cal.App.4th 1374, 1384.)

 

Alternative request to dismiss the action on inconvenient forum is denied.   As the moving party, defendant bears the burden of proof that the action should be tried elsewhere. Plaintiff’s choice of forum will not be disturbed unless the court is convinced:

--a “suitable” alternative forum exists; and

--the balance of private and public interest factors makes it “just” that the litigation proceed in the alternative forum.   (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)

 

Defendants have not made these arguments here. There is no evidence before the Court that all defendants reside in Tennessee, nor any evidence it would be seriously inconvenient for them to defend this action in California. MP has not attempted to analyze the private and public interest factors. Defendants merely submit the Declaration of their attorney stating, “All of the facts and circumstances giving rise to this action resulted from Defendant’s purchase of sound and video equipment through a Memphis, Tennessee sound production engineer…” (Declaration of Montes ¶3.)

 

Also, Defendants’ motion also ignores that the subject Lease Purchase Agreement contains a forum selection clause of Orange County. (Complaint Exh. 1.) The parties’ knowing and voluntary agreement to litigate their dispute in a particular state or country (with which they have reasonable contacts) is normally given effect.  (Berg v. MTC Electronics Technologies Co., Ltd. (1998) 61 Cal.App.4th 349, 358-359.) The clause herein appears mandatory. Having agreed to California in advance, there is little room for claiming litigation here is “inconvenient.”  (Appalachian Ins. Co. v. Sup.Ct. (Union Carbide Corp.) (1984) 162 Cal.App.3d 427, 439.)

 

(2) CMC is continued to 10-21-14, Dept. C13, at 8:45 am.

 

RP is to give notice.