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.

 

August 23, 2016

2:00 P.M.

 

 

 

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Case Name

Tentative

 

 

 

1

HEALTH ESSIST HOLDINGS, INC. V JRF TECHNOLOGY, LLC

 

 

Motion to Quash Service of Summons

 

Ruling:  Off Calendar – no hearing will be held.   Defendants JRF Technology, LLC Richard Fielder, and James Rossman motion to quash service of the Plaintiff Health Essist Holdings, Inc.’s summons and complaint upon them is CONTINUED to 10-25-16, Dept. C13 at 2 pm, to allow the plaintiff to propound and obtain responses to discovery regarding jurisdiction to the defendants before the hearing on this motion to quash.  Such discovery is specifically limited to interrogatories and requests for production of documents and shall only address the issue of jurisdiction; e.g., to establish the nature and extent of the defendant's contacts” in California. 

Plaintiff has made a proper request for such relief in opposition to this motion. The plaintiff has set forth sufficient facts to support a finding of good cause for the needed discovery and diligence in making the request and/or propounding discovery.  Additionally, the plaintiff has indicated the discovery the plaintiff wishes to propound and the subject they will include.

Defendant’s unopposed request for judicial notice of the Exhibit A and B is GRANTED.  The docket showing that the complaint in Health v. Water Soluble Packaging which was removed to federal court (Exhibit A) and the docket reflecting dismissal of the complaint after it was removed to federal court (Exhibit B) motion to dismiss (Exhibit C) and dismissal without prejudice (Exhibit D) is granted pursuant to Evidence Code section 252(d) as they are records of (1) any court in this state or (2) any court of any record of the United States or of any state in the United States. 

         

Moving party is ordered to give notice.

 

2

KIL V KIL

Motion to Be Relieved as Counsel of Record

Ruling:  Off Calendar per MP – no hearing will be held.   Plaintiff has dismissed moving party.   

 

3

KOOSED V SERNA

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Answers to Special Irogs (3) Motion to Compel Production (4) Motion to Compel Production

Ruling:  Off Calendar – no hearing will be held.     Defendants Davina Ana Serna and Daniel Serna’s unopposed Motions to Compel Responses to the First Set of Form Interrogatories, Special Interrogatories and Demand for Production of Documents are GRANTED as follows. The Motions are unopposed and were properly served.  Plaintiff Marly Koosed is ordered to provide verified responses, without objections, within 20-calendar days. 

Moving party is to give notice.

Based on the evidence submitted, Defendants served Plaintiff with a first set of Form Interrogatories, Special Interrogatories and Demand for Production of Documents on 3-21-16, but Plaintiff failed to respond. Thus, the Court GRANTS Defendants’ unopposed motions to compel original responses, without objection, pursuant to Code of Civil Procedure sections 2030.290 and 2031.300.

 

4

NMC ANAHEIM, LLC. V LAKE DASH, LLC

(1) Demurrer to Cross-Complaint (2) Motion to Strike

                   

Tentative Ruling: (1) Cross-Defendants NMC Anaheim, LLC, RLM Family Properties, LLC, Anaheim Island Partners, LLC, Newmark Merrill Companies, LLC, Sandy Sigal, and Greg Giacopuzzi’s Demurrer to the Cross-Complaint is OVERRULED, with 10-days to Answer.

For pleading purposes, Cross-Complainants have adequately pled a breach of contract claim and a fraudulent concealment claim.  In addition, Cross-Complainants have pled an agency theory of liability as to all Cross-Defendants, and the court must accept this ultimate fact as true. 

 

Prevailing party is to give notice.

 

(2) Cross-Defendants NMC Anaheim, LLC, RLM Family Properties, LLC, Anaheim Island Partners, LLC, Newmark Merrill Companies, LLC, Sandy Sigal, and Greg Giacopuzzi’s Motion to Strike Portions of the Cross-Complaint is GRANTED in part and is DENIED in part.

The court STRIKES the request for declaratory relief, without prejudice.  Although there is an actual controversy between the parties with respect to the legal rights between the parties arising out of the guaranty agreement, this claim has crystallized into the fraud claim asserted in the Cross-Complaint and the affirmative defenses in the Answer to the underlying Complaint.

The request to strike punitive and exemplary damages is DENIED.  Cross-Complainants have adequately pled a fraud in support of their request for punitive and exemplary damages. 

 

Prevailing party is to give notice.

 

5

 

NELSON VS MUSGRAVE

Demurrer to Cross-Complaint 

 

Ruling: Off Calendar – no hearing will be held.  The Court SUSTAINS the unopposed Demurrer filed by Cross-Defendant Colton Nelson. 

The Court construes Cross-Complainants’ 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].)

Cross-Complainants are to file any amended Cross-Complaint within 15 days service of notice of this order. 

 

Moving Cross-Defendant to serve notice of this order.

 

6

ROBERTS V RICHART

Motion to Strike Portions of Cross-Complaint  

 

Tentative Ruling: Defendant Tanner Scott Richart’s motion to strike is GRANTED.  

Defendant is to give notice.

 

REQUEST FOR JUDICIAL NOTICE:

The Court declines to take juridical notice of the unauthenticated documents attached to Plaintiffs’ request as Exhibits A – C, on the grounds that they are not relevant for the purposes of this motion. 

MOTION TO STRIKE:

 

Defendant Tanner Scott Richart (“Defendant” or “Mr. Richart”) moves to strike portions of the Complaint seeking punitive damages.  The court may strike out any irrelevant, false, or improper matter inserted in any pleading and 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.  (Code Civ. Proc., § 436.)

To plead punitive damages, a plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.)  “Fraud” means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Civ. Code, § 3294(c)(3).)  “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294(c)(1).)  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (Civ. Code, § 3294(c)(2).) 

Section 3294 does not define “despicable conduct” within the context of punitive damages.  However, “[u]sed in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (College Hosp., Inc. v. Super.Ct. (Crowell) (1994) 8 Cal.4th 704, 725, quoting Oxford English Dictionary (2nd ed. 1989); see American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050—“despicable” suggests “the character of outrage frequently associated with crime.”)  Accordingly, CACI defines “despicable conduct” as “conduct that is so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.” (CACI 3940, 3941; see also BAJI 14.71, 14.72.1.)

To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to “establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”  (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96.)  Recklessness alone is insufficient to sustain an award of punitive damages because “[t]he central spirit of the exemplary damage statue, the demand for evil motive, is violated by an award founded upon recklessness alone.’”  (Id. at 895.)  Moreover, although the circumstances in a particular case may disclose similar willful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.  (Id. at 899-900.) 

The Complaint alleges, in pertinent part, as follows:

The auto accident occurred on Adams Avenue in Huntington Beach at the intersection of Picadilly Lane at about 8 p.m. on August 20, 2015 (Complaint, ¶ 3);

Plaintiff had come to a complete stop in her vehicle in the left turn pocket on eastbound Adams Avenue, to turn left onto Picadilly Lane (Id., ¶ 4);

Mr. Richart was driving his Toyota Tacoma truck at an extremely high rate of speed and sideswiped a vehicle driven by Defendant Mary Arneson Lombino (“Ms. Lombino”) who was coming out of a driveway onto eastbound Adams Avenue (Id., ¶ 5);

After crashing into Ms. Lombino’s vehicle, Mr. Richart lost control of his vehicle and slammed into the rear-end of Plaintiffs’ vehicle (Id., ¶ 6);

Three witnesses attested that they witnessed Mr. Richart driving recklessly, erratically and at a high rate of speed in the moments prior to the crash, and almost causing other accidents (Id., ¶ 7); the acts of Defendants were malicious, and subject them to liability for punitive damages to punish and make an example of them for their conduct, in that the Defendants intended to cause injury to the Plaintiffs and acted despicably with a either conscious disregard for Plaintiffs’ rights or safety, or they acted in conscious disregard of the probability that their conduct would result in injury to others, and to subject the Plaintiffs to cruel and unjust hardship in conscious disregard for Plaintiffs’ rights (Id., ¶ 13); this malicious state of mind is evidenced by Defendants Richart and Does 1-10 driving at an extremely high rate of speed, and almost causing other accidents at various points moments before this accident was caused (Ibid).

The Complaint fails to adequately allege specific facts demonstrating fraud, malice and/or oppression, i.e., the Complaint fails to allege facts demonstrating that Mr. Richart was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.  Accordingly, the motion to strike is granted. 

 

7

SCILABS NUTRACEUTICALS, INC V LUBERSKI, INC.

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

 

Ruling:  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 is CONTINUED to 9-27-16, Dept. C13, at 2 pm.

The court clarifies that Moving Party is to also serve the moving papers at Plaintiff’s address of record (17809 Gillette Ave., Irvine, CA 92614).  Moving Party is to file a proof of service reflecting the same by 8-26-16.

Moving Party is to serve a Notice of Continuance at both of Plaintiff’s addresses (401 Rockefeller, #1201, Irvine, CA 92612 and 17809 Gillette Ave., Irvine, CA 92614) and file a proof of service reflecting the same by 8-26-16. 

 

Moving Party is to give notice.

 

8

THOMAS GALLOWAY CORP. V CALL & JENSEN

Motion to Compel Further Responses to Special Irogs

     

Tentative Ruling:  Defendants/Cross-Complainants Call & Jensen and David Sugden’s Motion to Compel Further Responses to Special Interrogatories, Set No. One, is GRANTED only as to Special Interrogatory Nos. 89, 90, and 91; and is otherwise DENIED as follows.

Initially, the Court notes the Motion was brought seeking an order compelling further responses to the first set of Special Interrogatories, Nos. 4, 6, 7, 11, 13, 15, 17, 19, 20, 24, 29, 34, 46, 63, 66, 69, 70, 72, 74, 75, 76, 86, 89-97, 108, 111, 114, 119, 122, 129, 141-146, 148, 150, 155, 156, 161, 162, 167, 168, 172, 173, 175, 177, 181, 182, 183, 184, 189, 190, 195, 196, 21,, 212, 215, 218, 219, 221, 222, 226, and 227. Pursuant to the 7-26-15 Notice of Withdrawal of the Motion filed by Defendants, the Motion is now only as to Special Interrogatory Nos. 4, 13, 17, 19, 70, 86, 89, 90, 91, 92, 94, 95, 141, 142, 143, 144, 145, 146, 148, 161, 162, 175, 181, 183, 190, and 212.

As to Special Interrogatory Nos. 4, 13, 17, 86, 92, 94, 95, 148, 161, 162, 175, 181, 183, 190, and 212, Plaintiff provided substantive responses to the interrogatories which were code compliant. Code of Civil Procedure section 2030.220 requires the responding party to provide “as complete and straightforward a response as the information readily available…permits” and “answered to the extent possible.”

As to Special Interrogatory Nos. 19, 183, 190, and 212, Code of Civil Procedure section 2030.230 allows the responding party to respond to an interrogatory by referring to this section and specifying the writings from which the answer may be derived or ascertained. This is exactly what Plaintiff did to respond to these interrogatories.

As to Special Interrogatory Nos. 70, this interrogatory is cumulative and overbroad in light of the number of interrogatories propounded in this first set of Special Interrogatories. Further, Plaintiff responded that the documents responsive to this interrogatory are equally available to Defendants.  “Where the information sought is equally available to the propounder of the interrogatory, the burden and expense of any research which may be required should be borne by the party seeking the information.” (Pantzalas v. Superior Court of Los Angeles Cty. (1969) 272 Cal. App. 2d 499, 503.)

As to Special Interrogatory No. 89, 90, and 91, since Plaintiff’s response to Special Interrogatory No. 88 was in the “affirmative,” these interrogatories were not “N/A” as responded to by Plaintiff. And, although there is language quoted from the Complaint which is not quoted in the proposed First Amended Complaint, these interrogatories can still be answered as the substance of the interrogatories remains the same.

As to Special Interrogatory No. 141-146, Plaintiff is correct that Interrogatory No. 141 is unintelligible as phrased. To respond to this interrogatory does require “pure conjecture” because it requires Plaintiff to state specific dates as to when an “earlier” settlement offer “should have been made.”  The mere allegation in the Complaint is that Call & Jensen failed to attempt to make early settlement offers, not that early settlement offers should have been made on certain dates or points in time. Because Special Interrogatory Nos. 142, 143, 144, 145, and 146 arise out of Interrogatory No. 141, no further responses are required as to these interrogatories.

The Court DENIES Plaintiff’s request for sanctions. The Court does not find that Defendants acted without substantial justification in filing the Motion as required by Code of Civil Procedure section 2030.310(d).

The Court DECLINES to rule on Defendants’ evidentiary objections as there is no statutory requirement for same. Also, the evidentiary objections have no bearing on the substance of the Motion or this Court’s ruling on the Motion.

 

Moving Party is to give notice.

 

9

WASHINGTON V AETNA, INC.

(1) Motion to Compel Production (2) Motion to Compel Production

 

Ruling:  Off Calendar – no hearing will be held.  The matter is continued to 9-20-16, Dept. C13, at 2 pm.  Counsel are ordered to meet and confer.   Should the parties fail to resolve the discovery issues subject to this motion, they are ordered to file a list of any remaining disputed issues 5 court days before the continued hearing date.

It is very clear that absolutely no meet and confer attempt was made after defendants served supplemental responses. Plaintiff seems to suggest that because the supplemental responses did not take into consideration any of the prior meet and confer concerns, no further meet and confer was necessary. The Court disagrees.  Accordingly, the Court orders the parties to meet and confer prior to ruling on this motion.

 

10

WILLIAMS VS DEUTSCHE BANK TRUST COMPANY AMERICA

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

 

Tentative Ruling:  (1) Defendants PNC Mortgage Bank, Deutsche Bank Trust Company America, and Mortgage Electronic Registration Systems, Inc.’s unopposed Demurrer to the SAC is OVERRULED as to the 1st COA; SUSTAINED, with 20-days leave to amend, as to the 2nd, 4th, and 5th COAs; and SUSTAINED, without leave to amend, as to the 3rd and 6th COAs, as set forth below.

As to the 1st COA (promissory estoppel), this cause of action is sufficiently pled. Reliance is alleged in paragraphs 45, 47, 54, and 56 of the SAC and damages are alleged in paragraph 57 of the SAC. Defendant contends any reliance on the alleged promise was unreasonable and any damages sustained was not the result of Plaintiff’s reliance, but Defendant fails to cite any legal authority for same. All legal arguments advanced must be supported by legal authority which Defendant failed to do in the Demurrer. (See CRC, Rule 3.113(b).)

As to the 2nd COA (violation of Wel. & Inst. Code Sect. 15600 set seq. (“Elder Abuse”)), this claim is not sufficiently pled. The SAC does not allege that Defendants’ alleged conduct deprived Plaintiff of a property right as required to state a cause of action for financial abuse of an elder under Welfare and Institutions Code section 15610.30.

As to the 3rd COA (violation of Civ. Code section 2923.5 (“Wrongful Foreclosure”)), Plaintiff’s claim is preempted by the Home Owners’ Loan Act (“HOLA”). (See Rodriguez v. JP Morgan Chase & Co. (S.D. Cal. 2011) 809 F. Supp. 2d 1291, 1295 [finding plaintiff’s claims for violation of Civil Code section 2923.5 for failing to file proper declaration, provide plaintiff with a toll-free number, or comply with provisions for contacting plaintiff prior to foreclosure preempted by HOA where complaint alleged bank was a federal chartered bank at the time the loan was originated.] Here, as in Rodriguez, supra, the SAC alleges Defendant violated Civil Code section 2923.5 for failing to comply with the provisions for contacting Plaintiff prior to foreclosure and for filing an improper declaration

As to the 4th and 5th COAs (breach of implied contract and breach of the implied covenant of good faith and fair dealing), the SAC still does not allege facts sufficient to show the formation of an enforceable contract providing for a short sale of Plaintiff’s home. The SAC does not allege an intent by Defendants PNC and Deustche to promise to allow Plaintiff to short sale his home. (See Div. of Labor Law Enf't v. Transpacific Transp. Co. (1977) 69 Cal. App. 3d 268, 275 [“…an implied in fact contract…the very heart of this kind of agreement is an intent to promise…”]

As to the 6th COA (unfair competition), this is a pre-foreclosure action and the SAC fails to plead any unlawful, unfair, or fraudulent conduct that is "injurious to consumers." There is also no unlawful conduct alleged in light of the Court’s ruling on demurrer as to the 3rd cause of action for violation of Civil Code section 2923.5.

 

Moving Party is to give notice.

 

(2) Defendants PNC Mortgage Bank, Deutsche Bank Trust Company America, and Mortgage Electronic Registration Systems, Inc.’s Motion to Strike portions of the SAC is DENIED, in its entirety.

Plaintiff is correct that it requested opportunity to amend the Complaint to include additional causes of action, which include, without limitation, violation of California’s Homeowner’s Bill of Rights’ dual tracking provisions, and violation of the elder abuse statutes, in the Opposition to the Demurrer filed on 11-19-15.

The Court’s tentative ruling on the initial Demurrer, which the parties submitted to, was to sustain it without leave to amend as to the 1st, 5th, 6th, and 7th causes of action and sustained, otherwise, with 20-days leave to amend. (See 12-1-15 Minute Order.) The leave to amend was with respect to the “not yet alleged causes of action” which Plaintiff requested leave to add in the Opposition.

 

Moving Party is to give notice.

 

11

WISMER V WELLS FARGO BANK, N.A.

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

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  Continued to 9-20-16, Dept. C13, at 2 pm per MP.     

 

12

WRIGHT V SWD RECREATION, INC.

 

(1) Motion – Other (2) CMC

            

Tentative Ruling:  Plaintiff Jonathon Wright’s Motion to Vacate the Entry of Judgment is GRANTED.

The court has discretionary relief pursuant to Code of Civil Procedure section 473(b) to vacate the order granting Defendant SWD Recreation, Inc.’s Motion for Summary Judgment.  The court finds there was a reasonable mistake in fact in Plaintiff’s counsel’s belief that the hearing on the MSJ was continued. 

Given the decision to GRANT Plaintiff’s Motion to Vacate, the Court orders Plaintiff to pay attorney fees in the amount of $1,200.00, as follows:  (1) 5 hours preparing the opposition to the instant 473(b) motion at $150/hr; and (2) 3 hours to travel to and appear at the hearing on this motion at $150/hr.

The hearing on the MSJ is RESET for 9-20-16, Dept. C13, at 2 pm.

Plaintiff is to pay attorney fees in the amount of $1,200.00 within 30-days.

 

Prevailing party is to give notice.