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.

DO NOT CALL THE DEPARTMENT TO VERIFY IF YOU SHOULD APPEAR OR NOT.  PLEASE READ YOUR TENTATIVE FOR THE INFORMATION.

 

Date: 07/7/15

 

 

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.

 

 

 

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Case Name

Tentative

 

 

 

1

567 Melrose Street vs. Mattox

Application for Right to Attach Order/Writ of Attachment   

 

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

2

Burris vs Cranbrook-Tustin

(1) Petition to Compel Arbitration (2) CMC  

 

Tentative Ruling:  (1) Plaintiffs’ RFJN of the truth of facts and legal conclusions stated in Judge Di Cesare’s Order of April 18, 2013 in Moody v. Cranbrook-Tustin Manager, LLC, OCSC case number 13-623862 is DENIED.  The Court will take judicial notice of the existence of the document in the Court’s files.  The remainder of the RFJN is DENIED in its entirety.

 

Defendants’, Cranbrook-Tustin Manager, LLC; Integral Senior Living, LLC; Integral Senior Living Management, LLC, RFJN is GRANTED.

 

Initially, the Court concludes defendants are not barred from filing this Petition by the doctrine of collateral estoppel.  Since the Moody MO is the basis for the assertion of collateral estoppel, it is unsupported in light of the Court’s ruling on the RFJN.  However, even if the Court were to take judicial notice of the facts and legal conclusions in the document, two of the required elements for the application of collateral estoppel are not met here.  A petition to arbitrate is not a final disposition of any issue in the case, it is a motion to enforce a forum selection.  There is not an identity of issues – the facts of this case are different than those in Moody.

 

Defendants have shown the existence of a valid arbitration agreement.  They have agreed to be bound by its terms.  Under decedent Waggoner’s Health Care Power of Attorney only Claudia Burris was designated as his agent.  The General Durable Power of Attorney has no application here.

 

The allegations of plaintiffs’ Complaint show all defendants are parties to the arbitration agreement.  (Laswell v. Seal Beach (2010) 189 Cal.App.4th 1399.) Therefore, they may enforce it through this Motion.

 

After careful independent analysis of the facts of this particular case, the Court finds the Arbitration is substantively unconscionable.  The obligation to arbitrate is not mutual, as required.  (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1287; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174-175.)  Prohibition of punitive damages, which are statutorily available under Welfare and Institutions Code, is not permitted, based on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83 and Shu v. Superior Court (2010) 181 Cal.App.4th 1504.

 

However, there is no procedural unconscionability.  Plaintiffs have the burden of establishing that the arbitration agreement resulted from oppression or surprise.  (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal. App. 4th 1322.) They have not established either.

 

There is no showing of oppression.  The arbitration agreement was not presented on a “take it or leave it” basis.  It was presented as part of “merely the standard” documents.  By its own terms, admission to the facility or receipt of services is not conditioned on the signing of the agreement.  It specifically says the patient has the option of not signing the agreement and not being bound by its terms.  (Arbitration Agreement, Article 3.) 

 

There is also no showing of surprise.  The fact that the stand-alone arbitration agreement was in a stack of admission documents does not dictate a finding of surprise.  The arbitration agreement is a separate document, separately signed.  The documents were signed a few days after plaintiff Claudia Burris visited the facility to decide if her father should move there.  When she went back, she was given the documents.  She offers no testimony saying she was told she had to sign them immediately or that she was prevented from considering them fully, with her spouse, or even counsel.  She says she was not offered more time, but does not say she asked for it.  She was understandably stressed about her difficult decision, but again, this alone does not establish surprise.  She admits she has no prior experience reviewing or signing an arbitration agreement, but again, this does not establish surprise.  It may be inferred from her declaration that she may not have read the document.  She says Cranbrook did not tell her the specifics of the arbitration agreement.  But she does not say she was affirmatively misled about it, either.  The terms of the arbitration agreement are clearly written and are not misleading.

 

Without the presence of both substantive and procedural unconscionability, the agreement remains enforceable.  (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83.)

 

This action is stayed pending arbitration.  (Code Civ. Proc., §1281.4.)

 

3

Carson Estate Trust vs Colorbok, INc.

Demurrer to Second Amended Complaint (SAC)  

 

Tentative Ruling:  Demurrer to the SAC is SUSTAINED, in its entirety, with 15 days leave to amend.

 

The Demurrer brought on behalf of Defendant Colorbok, LLC is SUSTAINED, as to the Second and Sixth COAs, on the basis Plaintiff failed to identify a misrepresentation, made on behalf of this entity.   Similarly, as to the alleged concealments, Plaintiff failed to articulate a duty to disclose, as required.  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

 

While the Opposition references a contractual duty to make certain disclosures, it appears undisputed the referenced Lease was executed only by Colorbok, Inc. (See ¶30 of the SAC.)  

 

Similarly, the Demurrer brought on behalf of Colorbok, LLC is SUSTAINED, as to the Fourth COABert & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, appears to support a duty owed by the corporate officers of Colorbok, Inc.; however, no showing has been made, demonstrating the “trust fund doctrine” establishes a fiduciary duty owed by Defendant Colorbok, LLC.    Likewise, Plaintiff failed to identify any factual allegations which establish a fiduciary duty on the part of Colorbok, LLC.

 

The Demurrer brought on behalf of Defendants Lazear Capital Partners, LCP Holdings, and Bruce Lazear, to the Third, Fifth and Seventh COAs is SUSTAINED:  While Plaintiff cites to numerous factual allegations within the Opposition, no clear factual allegations demonstrating “substantial assistance” or “encouragement” could be located. (American Master Lease, LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1475; See also Schultz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 98.)

 

Last, the Demurrer brought on behalf of Defendants Lazear Capital Partners, LCP Holdings, Bruce Lazear and Colorbok, LLC, as to the Eighth COA, is SUSTAINED: Plaintiff failed to clearly identify factual allegations of “intentional acts designed to induce a breach or disruption of the contractual relationship,” as required. (Pacivic Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

 

4

Cote vs Genesis Acquisitions

Demurrer to Cross-Complaint   

 

Tentative Ruling:  The Court finds that the Demurrer to the First COA has been rendered MOOT, given the Notice of Errata filed on May 4, 2015 and, thus, the same is OVERRULED.  

 

While Cross-Defendant asserts, additionally, that the attached Exhibit contradicts the allegations of the Complaint, the Court declines to consider this argument at this time, as Cross-Complainant has been denied the opportunity to respond to the same.

 

The Demurrer, however, is SUSTAINED, with 15 days leave to amend, as to the Second and Third COAs, on the basis Complainant fails to specifically allege damages. (See (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 and ¶16 and ¶23 of the Cross-Complaint.)

 

Last, the Demurrer to the Fourth COA is OVERRULED.  Although some confusion exists as to the appropriate title, case law nonetheless supports the existence of a claim which provides for restitution. (See Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.)

5

Derakhshan vs Merona Trust #1333

Demurrer to Complaint   

 

Ruling:  Off Calendar – no hearing will be held.  The Court SUSTAINS the unopposed Demurrer filed by Defendants Wells Fargo Bank, N.A. and Deutsche Bank National Trust Company.

 

The Court construes Plaintiffs’ 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].)

 

Plaintiffs are to file any amended Complaint within 15 days service of notice of this order.  Demurring Defendants are to serve notice of this order.

 

6

Farahani vs Tahbaz

Demurrer to Complaint   

 

Tentative Ruling:   The demurrer filed by defendants to the 1st through 4th COAs in the Complaint on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty is overruled in part and sustained in part as follows: 

 

Overruled as to the 1st COA for breach of contract as to defendant Tahbaz.  Sustained as to the 1st COA for action for breach of contract as to defendants Mehrabady and Intellirose, Inc.  Plaintiff fails to allege the existence of a contract between plaintiff and defendants Mehrabady and Intellirose, Inc.

 

Sustain as to the 2nd COA for fraud.  Plaintiff fails to allege each element with particularity and factual specificity.

 

Sustain as to the 3rd COA for conversion.  Plaintiff fails to allege the elements of conversion as to the 750 shares of Intellirose, Inc.  Plaintiff fails to allege ownership or right to possession of the shares, defendant’s wrongful conversion of such shares, and resulting harm to plaintiff.  

 

Sustained as to the 4th COA for declaratory relief.  Plaintiff fails to allege the existence of an actual controversy between plaintiff and defendants Tahbaz and Intellirose, Inc.

 

Plaintiff is granted 10 days leave to amend.  Counsel for Moving Party is to give notice.

 

7

Hoffman vs Barnes

Demurrer to Amended Complaint     

 

Tentative Ruling:  Defendants, North Orange County Escrow Corporation and Kim Santiago Demurrer to the 3rd COA for negligence is overruled. Plaintiffs pled Defendants had a duty to provide copies of escrow instructions and amendments which they failed to do.  (See SAC¶40; Fin. Code, §17403.3.) Defendants fail to address this theory of liability in their demurrer.  (Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Sup.Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.) 

Defendants’ demurrer to the 4th COA for Breach of Fiduciary Duty is sustained without leave to amend.

Defendants cite to the Summit case which provides:

In delimiting the scope of an escrow holder's fiduciary duties, then, we start from the principle that “[a]n escrow holder must comply strictly with the instructions of the parties. [Citations.]” (Amen, supra, 58 Cal.2d at p. 531, 25 Cal.Rptr. 65, 375 P.2d 33.) On the other hand, an escrow holder “has no general duty to police the affairs of its depositors”; rather, an escrow holder's obligations are “limited to faithful compliance with [the depositors'] instructions.” (Claussen v. First American Title Guaranty Co. (1986) 186 Cal.App.3d 429, 435–436, 230 Cal.Rptr. 749; see, e.g., Vournas, supra, 73 Cal.App.4th at p. 674, 86 Cal.Rptr.2d 490; Romo v. Stewart Title of California (1995) 35 Cal.App.4th 1609, 1618, fn. 9, 42 Cal.Rptr.2d 414; Schaefer, supra, 104 Cal.App.3d at pp. 77–78, 163 Cal.Rptr. 402; Axley v. Transamerica Title Ins. Co. (1978) 88 Cal.App.3d 1, 9, 151 Cal.Rptr. 570.) Absent clear evidence of fraud, an escrow holder's obligations are limited to compliance with the parties' instructions. (Lee v. Title Ins. & Trust Co. (1968) 264 Cal.App.2d 160, 162, 70 Cal.Rptr. 378; ***546 3 Miller & Starr, Cal. Real Estate, supra, § 6:26, p. 68.)

(Summit Fin. Holdings, Ltd. v. Cont'l Lawyers Title Co. (2002) 27 Cal. 4th 705, 711, as modified on denial of reh'g (May 15, 2002).)  The 4th COA for Breach of Fiduciary Duty appears to be premised on Defendants’ failure to return phone calls and e-mails; and ultimately, releasing the money to Dorsey. Summit is instructive in that an escrow agent, as a fiduciary, is limited to complying with the escrow instructions provided by the parties and is not required to police the transaction. Plaintiffs’ facts essentially require Defendants to police the transaction.

MP is to give notice.

8

IKON Builders vs Phillips

Motion for Attorney Fees   

 

Tentative Ruling:  Motion for Attorney Fees is GRANTED but reduced. Plaintiff is the prevailing party and entitled to fees pursuant to Code of Civil Procedure section 405.38.  The Court allows 24.4 hours of attorney time by Adam S. Hamburg at $350 an hour. The Court finds the requested time of 73.5+ (including three attorneys and a paralegal) hours to be excessive for an opposition to a motion to expunge. One attorney, spending 24.4 hours, on an opposition to a motion to expunge appears reasonable to the Court. Accordingly, attorney fees are awarded in the amount of $8,575.00.  RFJN is denied as unnecessary to the Court’s ruling.  MP is to give notice.

 

It does not appear the fees requested in the amount of $28,034.50 are reasonable.  Nothing about the hourly rate of Plaintiff’s attorneys is abnormal or excessive; rather, it is the time spent (and on what, and by whom) that appears unreasonable. 

 

Per Hamburg’s declaration, it took:

·         Hamburg (2006) spent 35.5 hours

·         Andrade (1977) 14.8 on the motion to expunge.

·         Wiseman (2009) 19.7 hours on opp.

·         Rojas (paralegal) 3.5 hours

 

In sum it appear plaintiff’s counsel consumed some 73.5 hours to successfully oppose the motion to expunge, with three attorneys and one paralegal working on the matter.  This is simply too much.

 

First, the statute allows for fees in making or “opposing the motion”. There is no suggestion in the statute that fees are allowed for oppositions to ex partes, discovery, or even subsequent motions for attorney fees.

 

Second, and perhaps more important, it is difficult to believe that it took three attorneys (including one who has been practicing since 1977) and a paralegal to work on this matter. As only one attorney, Hamburg, submitted a declaration, the Court will deny any requests for fees incurred by Andrade, Wiseman, or Rojas. As Hamburg does not submit any billing statements, it is unclear how he would have personal knowledge of precisely how or what these other professionals worked on.

 

So, this limits the Court’s analysis simply to ¶31 of the Hamburg declaration wherein he states he spent 35.5 hours in connection with Defendant’s motion to expunge.  The Court will allow this time, except the 11 hours incurred “in connection with the research and preparation of IKON’s Motion for Attorney’s Fees and Costs and this declaration in support thereof” for the reason set forth above. That leaves 24.5 hours at $350 an hour, for a total of $8,575.00.  This amount is on the upper end of such fees requests reviewed by this Court and accounts for the argument that the motion to expunge involved difficult/or unusual issues.

 

RFJN filed with the reply papers is denied as unnecessary to the Court’s ruling.

 

9

Mokri vs Akbarnazari

Demurrer to Complaint   

 

Tentative Ruling:  The demurrer filed by defendant Reza Akbarnazari to the 3rd and 8th COAs in the complaint is overruled in part and sustained in part as follows: 

 

As to the 3rd COA for constructive trust, overruled on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. 

 

As to the 8th COA for intentional misrepresentation, sustained on grounds of failure to state facts sufficient to constitute a cause of action, but overruled on grounds of uncertainty.  Plaintiff failed to allege fraud with the requisite factual specificity.  Plaintiff failed to allege where, how, and by what means the representation in paragraph 46 was tendered.

 

Plaintiff is granted 10 days leave to amend.  Counsel for Moving Party is to give notice.

 

10

Mood vs County of Orange

(1) Demurrer (2) CMC   

 

Tentative Ruling:  Demurrer to "Ex Parte Minute Order, Petition for Writ of Mandate and Amended Complaint with Statement of Evidence" is SUSTAINED, without leave to amend, on the basis Plaintiff/Petitioner failed to allege sufficient facts, to identify the basis of his claims against Defendant or to communicate entitlement to the requested relief.  (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608 and (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271.)

 

Finally, as Plaintiff/Petitioner was previously provided an opportunity to amend, and was unable to do so, the Court denies further leave to amend.   “[T]he burden is on the Plaintiff to show the manner in which []he may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

 

Notably, the Complaint/ Petition, labelled as an “Ex Parte Minute Order, Petition for Writ of Mandate and Amended Complaint” fails to include any clear factual allegations outlining Petitioner’s claims against Defendants.   While the initial Petition/Complaint appeared to seek an order compelling the County to provide certain medical care, the instant Petition/ Complaint concedes this issue has been rendered MOOT: “…plaintiff is no longer in need of the surgical procedure that was originally prescribed.” (See Petition: 7:24-26.)  Based on the above, it is unclear what remaining issues exist to be litigated.

 

At most, the Prayer for Relief reveals that Petitioner is seeking: (1) “General Relief for the plaintiff without future retaliation;” (2) An order preventing the County from mislabeling Plaintiff; and (3) An order indicating the County may no longer “interfere with plaintiffs employable status.”  As no facts are provided to communicate the basis for such relief, the Court will SUSTAIN the Demurrer, on the basis the Petition/ Complaint fails to include sufficient facts to support a claim.

 

Additionally, pursuant to Code of Civil Procedure section 1085(a), “[a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”  As further explained in Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, “[t]o obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty.” (Id. at 305; See also Code Civ. Proc., §1086.)

 

“A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (Id.)  Here, as argued by Defendants, Plaintiff/Petitioner fails to clearly identify a “ministerial duty” on the part of Defendants or the right Petitioner is entitled to, which Defendants are allegedly preventing Petitioner from enjoying.

 

Likewise, Plaintiff/Petitioner has not demonstrated or alleged, the lack of a plain, speedy or adequate remedy, such that writ relief is required.  Indeed, as discussed above, Defendants/Respondents persuasively argue that the Complaint/Petition is uncertain.

 

Pursuant to Code of Civil Procedure section 430.10(f), a party against whom a Complaint has been filed may object by demurrer, when the pleading is uncertain.  “Uncertain” includes ambiguous or unintelligible. (Id.)  Additionally, pursuant to Code of Civil Procedure section 425.10(a)(1), a Complaint shall include “a statement of the facts constituting the cause of action, in ordinary and concise language.”  Finally, pursuant to Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, “a Plaintiff is required…to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a Defendant with the nature, source and extent of his cause of action.” (Id. at 608.)

 

As indicated above, given the lack of factual allegations clearly identifying the conduct which forms the basis of the Petition/Complaint, the same is fatally uncertain.   Similarly, pursuant to Code of Civil Procedure section 1086, to support writ relief, the Petition must be verified. Further, pursuant to Code of Civil Procedure section 446, “[i]n all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true.”

 

The above referenced language is not included in any verification of the Petition.

 

The Court will DENY leave to amend, on the basis Petitioner was previously granted an opportunity to amend, and was unable to clarify his pleading.  “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)   A court should sustain a demurrer without leave to amend where there is no “reasonable possibility that the defect can be cured by amendment.” (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 480-481.)

 

11

 

 

 

 

 

 

Park vs Bio Protech USA

Motion for Summary Judgment and/or SAI    

 

Tentative Ruling:  Defendant Bio Protech USA, Inc.’s Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication, is DENIED.

 

Plaintiff’s evidentiary objections:  Plaintiff’s objections to Defendant’s evidence is overruled in its entirety.  Plaintiff has failed to comply with the formatting requirement set forth in CRC 3.1354 in that it does not quote or set forth the objectionable statement or material. 

 

Defendant's evidentiary objections: Defendant’s objections to Plaintiff’s evidence is overruled in its entirety.  Defendant has failed to comply with the formatting requirement set forth in CRC 3.1354 in that it does not quote or set forth the objectionable statement or material. 

 

Defendant’s MSJ as to the 1st COA (discrimination based on religion in violation of FEHA) is DENIED: 

Plaintiff has met his initial burden of establishing a prima facie case of discrimination.  Plaintiff is of Muslim faith, was competent in the performance of his job and did not receive any written reprimands with respect to his work performance, was terminated from his job, and that the circumstances suggest discriminatory motive in light of his religious beliefs.

 

The burden shifts to Defendant to establish a legitimate nondiscriminatory reasons for its actions.  The court finds Defendant has failed to meet its burden.  Although Defendant contends Plaintiff’s employment was terminated due to his consistent tardiness and “insubordination”, there is insufficient evidence showing the same.  There was no sign-in sheet for employees to clock in and out of work. (MP Exh. C, Depo. of Morris Jang, at pg. 29:15-23.)  Basically, the evidence submitted by both parties are dueling deposition testimonies and declarations.  As reflected in the deposition testimonies, there is no document reflecting what time Plaintiff came in or left for work. (MP Exh. C, Depo. of Morris Jang, at pg. 62:7-24.)  Mr. Jang ball-park estimates the time of when Plaintiff arrived, and declares Plaintiff was late. (Id.)  Plaintiff, however, states he had an agreement with Mr. Jang in that he was allowed to arrive late after he takes his lunch breaks in lieu of him giving up his 10 minute break times during the day. (MP Exhibit B, Depo. of Plaintiff, at p. 135:11-23.)  Therefore, Plaintiff provides evidence showing he was not necessarily “late” because of this agreement. 

 

In addition, when Plaintiff was terminated, he was initially informed that Defendant was terminating his position due to financial reasons. (MP Exh. B, Depo. of Plaintiff, at p. 172:9-13, 174:6-11.)  After Plaintiff informed Defendant it had just hired 3 new employees, Kevin Han (Vice President of Sales) then stated Plaintiff was being terminated for performance issues. (Id. at pp. 175:13-176:2.)  Defendant now declares Plaintiff was terminated for consistent tardiness and “insubordination” by way of being tardy. (Decl. of Morris Jang, at ¶¶ 9-10.)  The reasons offered for Plaintiff’s termination appears to have changed on several occasions.

 

Moreover, the decision to terminate occurred around the same time (possibly after) Plaintiff requested a day off to observe a religious holiday.  Plaintiff emailed Mr. Jan on Friday, 8-9-15 at 3:34 pm requesting the following Monday off to observe a religious holiday. (MP Exh. H.)  An email was sent by an individual named Jaehoo Lee to the President of Defendant Company on 8-9-15 at 5:07 pm reflects that they have decided to terminate Plaintiff’s employment the following Monday. (MP Exh. M.)  The email lists issues  they have had with Plaintiff, and one of the issues listed is that he asked for Monday off to observe a religious holiday (Id.) Although Defendant argues in the P&As that Mr. Jang decided to terminate Plaintiff’s employment at 2:40 pm (prior to Plaintiff requesting a day off for religious reasons), the only evidence submitted in support of this assertion is Mr. Jang’s declaration attesting to the same. (Decl. of Morris Jang, at ¶ 11.)  Therefore, the evidence submitted strongly suggests the triggering point for Defendant’s decision to terminate Plaintiff’s employment was after he requested the following Monday off for religious reasons.

 

Defendant’s MSJ as to the 2nd COA (harassment based on religion in violation of FEHA) is DENIED:   There is a triable issue as to whether the conduct was “severe” or “pervasive” as to alter the conditions of employment.   Mr. Jang discovered Plaintiff was Muslim in March of 2012 (MP Exh. C, Depo. of Jang, at p. 42:3-14; MP Exhibit B, Depo. of Plaintiff, at p.86:21-23.)  The following evidence reflects that Plaintiff was relocated to less desirable locations, and had his prayers intentionally interrupted, as a result of his religious faith.  The evidence is as follows:

 

·         Mr. Jang (Christian faith) would pray in the office that he shared with Plaintiff; however, he would not allow Plaintiff to pray in their shared office. (MP Exh. B, Plaintiff’s Depo, at pp.82-85, 90-91.) 

·         Defendant Jang thereafter allowed Plaintiff to attend a nearby mosque to pray. (Id. at 92:10-20.)  Defendant Jang thereafter informed Plaintiff he needed to remain on premises and was not allowed to go to the Mosque during lunchtime. (Id. at 97:13-23.) 

·         Plaintiff’s request to pray in the lobby or conference room was denied (id. at 98:8-24), and Defendant Jang suggested Plaintiff pray outside the sealing room in the warehouse (id. at 98:22-99:1.)  Plaintiff objected because the location was not safe as a result of the electrical wiring, was filthy, and was infested with insects. (Id. at 99:16-25.) 

·         Plaintiff thereafter began praying in the sealing room. (Id. at 101:8-11.)  Mr. Jang would slam the door approximately three times when he entered or left the sealing room to disrupt Plaintiff’s prayer. (MP Exh. B, Plaintiff’s Depo, at pp. 129:2-8, 132:8-10; Decl. of Steve Park, at ¶ 7.)  He would also stay and stare at Plaintiff while he prayed. (RP Exh. A, Plaintiff’s Depo, at p. 132:4-7.)  Plaintiff was thereafter informed that he could not pray in the sealing room. (Decl. of Morris Jang, at ¶ 5.) Defendant Jang allegedly informed Plaintiff that he was not allowed to pray in the sealing room because he was “scaring the people going outside.” (MP Exh. B, Plaintiff’s Depo, at pg. 111:11-16.)

·         Mr. Jang informed Plaintiff he could pray in the warehouse (Decl. of Jang at ¶ 5), which was not lighted and was over 90 degrees in temperature (MP Exh. B, Plaintiff’s Depo, at pg. 107:10-18.)  Therefore, Plaintiff states the warehouse was not a reasonable accommodation, and Defendant basically did not want Plaintiff to pray at all. (MP Exh. B, Plaintiff’s Depo, at pg. 108:2-23.)

 

Sometime in June of 2012, Plaintiff alleges he was disciplined and ordered to “shake hands” because he’s “in America” although he informed Kevin Han his religious beliefs prevent him from shaking hands with single non-related females. (MP Exh. B, Depo. of Plaintiff, at pp. 160:21-162:11.)  Kevin Han thereafter wanted to see Plaintiff’s “Bible” and have him point to the section where it prohibited Plaintiff from shaking hands with single non-related females. (Id. at 167:23-168:12.)  In addition, in June of 2013, Edwin Park (president of the company) stated to Plaintiff in an aggressive tone and in a threatening manner to shave his beard. (MP Exh. B, Depo. of Plaintiff, at pp.40:22-45:6.)  Plaintiff responded by stating it is Muslim practice to not shave his beard too close. (Id.

 

In July of 2013, when Plaintiff was engaged in religious practices that involved washing his feet, Kevin Han pointed at Plaintiff and offensively said “Muslim, Muslim.” (MP Exh. B, Depo. of Plaintiff, at p. 197:8-198:22.)   In addition, sometime in June or July of 2013, Kevin Han wrote in an email in which Plaintiff was CC’d that Plaintiff “couldn’t make the truck delivery reach the destination any faster even if he had high-jacked the trailer truck itself.” (MP Exh. C, Depo. of Plaintiff, at pp. 201:16-203:8.)  Plaintiff believes this references the 9/11 terror activity, and took offense to this statement. (Id.

Finally, when Plaintiff requested Monday off (the day he was terminated) to observe a religious holiday, James Lee’s first response was that Defendant “only recognizes US national holidays.”  Kevin Han responded within the hour stating that Plaintiff’s alleged religious holiday has ended, and that Defendant only recognizes “U.S. (where we live) holidays.” (MP Exh. H.)  The innuendo of whether the statements made were to “harass” Plaintiff as a result of his religious observances is an issue for the trier of fact.

 

The above evidence supports the finding of a triable issue as to whether the conduct was “severe” or “pervasive” as to alter the conditions of employment.  In addition, the conduct alleged to have been implemented by the President and Vice Presidents of the company who hired and ultimately fired Plaintiff.  Therefore, these individuals are supervisors for purposes of FEHA and the employer Defendant is strictly liable for their workplace harassment.

 

Defendant’s MSJ as to the 3rd COA (failure to provide reasonable accommodation based on religion in violation of FEHA) is DENIED:   Plaintiff has established his Muslim faith and the employer’s awareness of his religious beliefs.  In addition, “Religion” includes all aspect of religious beliefs, observances, and practices. (Gov. Code, § 12926(q).)  Here, Plaintiff’s deposition testimony reflects that his religious observance and practice was to engage in prayer/worship during the afternoon. (MP Exh. B, Depo. of Plaintiff, at pp. 88-138.)  In addition, this religious practice conflicted with the job requirement because Defendant was ultimately not allowed to pray on the business premises (although he was allowed to pray in the warehouse, which Plaintiff asserts is not a reasonable accommodation).  Although Defendant argues Plaintiff continued to pray for two years of his employment and therefore there was no “conflict,” Plaintiff’s evidence shows he was eventually prohibited from prayer towards the end of his employment.  This is sufficient to establish a prima facie case of a conflict.

 

The burden thus shifts to the employer.  Defendant contends the evidence reflects that Defendant engaged in the interactive process and granted all of Plaintiff’s requests for accommodation.  However, the evidence does not reflect that Defendant has met its burden of establishing that it has attempted to reasonably accommodate Plaintiff’s religious beliefs.  At minimum, the evidence establishes a triable issue with respect to the same.  As discussed above, the evidence shows Defendant continued to move Plaintiff’s location of prayer around, prohibited Plaintiff from praying in the office he shared with Mr. Jang (who was Christian and prayed in the share office space), prohibited Plaintiff from leaving the business premises to the mosque during his lunch break, and ultimately prohibited Plaintiff from praying at the business premises except for the warehouse (which Plaintiff contends was dirty, unlit, infested with insects, and over 90 degrees in temperature).

 

In addition, Plaintiff contends in the opposition papers that he requested Monday off to partake in Eidul Fitr.  Plaintiff contends that Eidul Fitur is not a set date, and can be celebrated any time during the Showall. (RP, Exh. 1, Plaintiff’s Deposition, at p. 139:11-12.)  James Lee’s first response was that Defendant “only recognizes US national holidays.” (MP Exh. H.)  Kevin Han responded within the hour stating that Plaintiff’s alleged religious holiday has ended, and that Defendant only recognizes “U.S. (where we live) holidays.” (MP Exh. H.)  Mr. Han declares he found that the religious holiday had ended via Google. (Decl. of Kevin Han, at ¶ 8.) As discussed above, there is a triable issue as to whether Plaintiff’s email requesting Eidul Fitr was the triggering point for Defendant terminating Plaintiff’s employment.  The above sufficiently establishes a prima facie case that Plaintiff’s religious observance conflicted with an employment requirement (i.e., being at work and available on the Monday).  Defendant’s purported Google search does not establish that Plaintiff’s religious observance on Monday is not a religious practice or custom. 

 

The burden shifts to Defendant to show that: (1) it attempted reasonably to accommodate the employee’s religious belief; or (2) any accommodation of the employee’s needs would result in undue hardship. (Gov. Code, § 12940(l)(1).)  Here, Defendant denied Plaintiff’s request and therefore did not seek to reasonably accommodate Plaintiff’s request.  In addition, Defendant has failed to provide any evidence to show the accommodation would have resulted in undue hardship to Defendant.  Therefore, the court finds Defendant has failed to meet its burden.

 

Defendant’s MSJ as to the 4th COA (failure to prevent discrimination in violation of FEHA) is DENIED:   Defendant contends this claim fails because the discrimination and retaliation claims fail.  However, the MSJ with respect to the discrimination and retaliation claims is DENIED, and the  MSA with respect to this COA is DENIED as well.

 

Defendant also contends Plaintiff never complained about the discrimination or harassment, and therefore Defendant was never in the position to investigate or prevent the same.  Defendant has not cited any legal authority showing Plaintiff must first complain about the discrimination or harassment to establish this COA.  Therefore, Defendant has failed to meet its initial burden of persuasion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 

 

Further, an employer’s anti-harassment policy and/or complaint procedure is relevant to whether or not the employer has taken “all reasonable steps.” (See, California Fair Employment and Housing Com'n v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1025 [“Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle complaints and grievances regarding discrimination.”])  As discussed above, there was no anti-harassment policy or procedure in place.  Thus, there is a triable issue as to whether the employer took “all reasonable steps” to prevent the discrimination and/or harassment.

 

Defendant’s MSJ as to the 5th COA (retaliation in violation of FEHA) is DENIED:  Defendant contends Plaintiff cannot establish a prima facie case because he cannot establish a causal link between the alleged protected activity and the adverse employment action.  But the evidence sufficiently reflects a causal link between Plaintiff’s protected activity of “opposing” Defendant’s practice of failing to comply with Title II of the Civil Rights Act by failing to “reasonably accommodate” Plaintiff’s religious observances and for filing a claim with the EEOC.  The burden therefore shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action taken.  As discussed above, Defendant has failed to meet its burden.

 

Defendant’s MSJ as to the 6th COA (wrongful termination in violation of public policy) is DENIED:  Defendant contends the claims are derivative because the other claims fail.  However, as discussed above, the MSJ with respect to the discrimination, harassment and retaliation claims is denied.  Therefore the MSJ with respect to this claim is likewise denied. (See supra.)  Defendant also raises the same issues set forth above (i.e., it had a legitimate, nondiscriminatory reason for termination).  The analysis for those issues are discussed above and are unpersuasive at this time.

 

Defendant’s MSJ as to the 7th COA (failure to provide access to personnel file in violation of Labor Code §§ 226 and 1198.5) is DENIED:   Defendant’s evidence indicates Defendant received Plaintiff’s letter requesting to view his personnel file sometime around 1-21-14. (MP, Exh. D, Depo. of Kevin Han, at pp.15:9-18.)  Defendant’s counsel declares that after her office was retained, she gathered the documents and served Plaintiff with a complete copy of the same. (Decl. of Allyson Thompson, at ¶ 8.)  Defendant’s counsel fails to declare when her firm was retained.  Therefore, there is no evidence to showing Defendant timely complied with Labor Code sections 226 and 1198.5.  Therefore, Defendant has failed to meet its burden.

 

Defendant’s counsel declares her firm sent Plaintiff a check in the amount of $750.00 for payment of the disputed claim on 4-16-15. (Decl. of Thompson, at ¶ 9.)  It is unclear from the evidence submitted whether or not this check was for settlement of the claim.  Because Defendant’s counsel does not declare that the claim has been settled, and Defendant’s moving papers state reasonable attorney fees can be determined later in this case (P&As, at pg. 18:16-22.), the court finds there is a triable issue as to damages.  Defendant’s MSJ with respect to this COA is DENIED.

 

Defendant’s MSJ as to the 8th COA (punitive damages) is DENIED:  As discussed above, the evidence reflects that managing agents (the Vice Presidents and the President of the Company) engaged in harassment and discriminatory conduct.  In addition, the evidence reflects that these individuals engaged in harassment and discriminatory conduct with, at minimum, a conscious disregard of the rights and safety of others.  Therefore, the court finds there is a triable issue with respect to punitive damages. 

 

Moving Party is to give notice.

 

12

The Versailles Homeowners vs Rolfes

(1) Motion for Preliminary Injunction (2) Demurrer to Cross-Complaint (3) Motion to Strike Portions of Cross-Complaint   

 

Tentative Ruling:  (1) The Versailles Homeowners Association’s Motion for

Preliminary Injunction is GRANTED, subject to posting of a bond in the amount of $5,000 by 7-15-15.  Plaintiff has made a strong showing that there is a real risk of imminent and irreparable injury to the building and its occupants if the requested relief is not granted.  (See Palmer Decl. ¶¶ 2-29, Du Mont Decl. ¶¶ 2-10, Aguirre Decl. ¶¶ 2-8, Kermott Decl. ¶¶ 3-22, and attached exhibits to each.) In contrast, no potential irreparable injury to defendant Rosemary Steinbrecher has been shown.  It also appears that the probability of Plaintiff prevailing on the merits is quite high.  Bond is set, per Code of Civil Procedure section 529, at $5,000.  Plaintiff is to submit an appropriate proposed order, in accordance with CRC 3.1312. 

 

(2) The Versailles Homeowners Association’s unopposed Demurrer to the Cross-Complaint filed by Rosemary Steinbrecher is SUSTAINED, with leave to amend. The Court construes Ms. Steinbrecher’s failure to oppose the Demurrer as an abandonment of her cross-claims or an admission that the Demurrer has merit.  (Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) In addition, the Demurrer appears to have merit.  Ms. Steinbrecher is to file and serve any amended cross-complaint within 20 days after service of notice of this ruling. 

 

(3) The Motion to Strike is, in light of the foregoing ruling, MOOT

 

Moving Parties to give notice.

 

13

Valero vs City of Placentia

Motion for Judgment on the Pleadings   

 

Ruling:  Off Calendar – no hearing will be held.  Complaint in Intervention dismissed, 6-25-15.

 

14

Wise vs Connecticut General Life Insurance

Demurrer to Complaint   

 

Ruling:  Off Calendar – no hearing will be held.  CONTINUED by the moving party to 8-11-15, Dept. C13, at 2 pm.

 

15

Woerz vs Systems Paving Inc.

Motion for Leave to File Amended Complaint    

 

Ruling:  Off Calendar – no hearing will be held.  First Amended Complaint filed on 4-23-15.