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: 5/19/15

 

 

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

Elieff vs Naas

(1) Demurrer to Complaint (2) CMC   

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  Defendant Erin Naas’s unopposed Demurrer to the Initial Complaint:  A proof of service for the Demurrer has not yet been filed with the court.  The hearing is therefore CONTINUED to 6-30-15, Dept. C13, at 2 pm.  Moving Party is to serve the documents and file a proof of service of the same by 5-26-15.  CMC is continued to the 6-30-15 hearing date.  Counsel should be prepared to discuss whether this case should be related to Elieff v. Armstrong, No. 2013-00689674.  Trial for that case is set for 7-13-15.  If the case should be related, the parties are ordered to file a Notice of Related Case.

 

Moving Party is to give notice.

 

A proof of service for the Demurrer has not been filed with the court.  CRC 3.1300(c) provides that the moving party must file a proof of service of the moving papers 5 court days before the hearing, i.e., 5-12-15.   As of 5-13-15, no proof of service was on file.  In light of the improper service, the court will CONTINUE the hearing on the demurrer and order the moving party to properly serve the moving papers and file a proof of service reflecting the same.

 

2

Kraushaar vs Coloplast Corporation

Motion for Summary Judgment/SAI   

 

Ruling:  Off Calendar – no hearing will be held.  Defendants’ Motion for Summary Judgment/ Adjudication is CONTINUED to June 16, 2015, Dept. C13, at 2 pm to allow Plaintiff the opportunity to respond to the Supplemental Declarations filed on May 14, 2015. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1184.)  Plaintiff shall file any evidentiary objections thereto, along with any additional opposition, no later than June 3, 2015.  Any additional opposition shall be limited to addressing the Supplemental Declarations and shall not exceed 5 pages.  Thereafter, Defendants may file a Reply, not to exceed 5-pages, no later than June 9, 2015.

 

MP is to give notice.

3

Leslie Shelley vs Mackley

(1) Motion for Judgment on the Pleadings (MJOP) (2) CMC   

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Plaintiff’s MJOP is denied as MOOT.  Defendant filed a First Amended Answer on 5-11-15.  It is unclear whether Defendant had the statutory right pursuant to Code of Civil Procedure section 472 to file a First Amended Answer without first obtaining leave of Court.  However, it is of no practical significance here, because the Court has the authority to grant a MJOP with leave to amend (see, Code Civ. Proc., § 438(h)(1)), and the issues regarding the lack of a verification and the failure to allege sufficient facts in the answer raised by Plaintiff’s motion can be remedied by an amended pleading. 

 

(2) CMC is continued to 6-23-15, Dept. C13, at 8:45 am.  Plaintiff is to give notice.

 

4

Linthurst vs Cavallo

Motion to Deem Facts Admitted   

 

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

 

5

Moore vs OC Auto Exchange

(1) Motion to Compel Arbitration (2) Joinder (Western Surety Co.) (3) CMC   

 

Tentative Ruling:  (1-2) Defendants’ Petition to Compel Arbitration is GRANTED.  Defendants have established the existence of a binding arbitration agreement with Plaintiff which applies to this dispute.  The burden thus shifts to Plaintiff to demonstrate that the arbitration provision should not be enforced.

 

Plaintiff has not met that burden. Plaintiff argues that the contract was induced by fraud, but that would not render the arbitration provision unenforceable, as claims that the contract as a whole was fraudulently induced must be resolved by the arbitrator. (See Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445-446.) 

 

Nor has unconscionability been established. That the contract is on a pre-printed form does not necessarily make it procedurally unconscionable. (Crippen v. Central Valley RV Outlet, Inc. (2004) 124 Cal.App.4th 1159, 1165-66.) Plaintiff has not established that he lacked the power to bargain here, and as a general principle, “nothing prevents purchasers of used vehicles from bargaining with dealers, even though dealers use form contracts.” (Crippen, supra, at 1166.) In addition, there is little basis for claiming surprise, as the contract identified the inclusion of an arbitration provision in multiple places, including the title itself.  Procedural unconscionability is thus not established here.

 

Nor has Plaintiff shown substantive unconscionability. Plaintiff argues that arbitration would limit his remedies, but has not shown how the relief he could obtain in arbitration would be so inadequate as to render the agreement unconscionable, nor has he cited to any authority to support that claim. Plaintiff also argues that arbitration would deprive him of a court or jury trial, but that is inherent in the proposition itself.  Plaintiff also argues that the terms are one-sided, but fails to specify which terms would have that effect or why.  Plaintiff has thus also failed to establish substantive unconscionability.

 

The Petition is therefore GRANTED. This action shall be stayed pending arbitration.  A post-arbitration review hearing is set for 10-26-15, Dept. C13, at 8:45 am.   Defendants’ request for costs is DENIED.  Moving Party to give notice.

 

6

Normand vs HSBC Bank

OSC re: Preliminary Injunction   

 

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

7

Park vs Bio Protech

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

 

Tentative Ruling: 

 

(1) Defendant Bio Protech USA, Inc.’s Motion to Compel Plaintiff Steve Park to Provide Further Responses to its First Set of Employment Form Interrogatories is GRANTED.  First, the court finds Defense counsel has sufficiently met and conferred in good faith. 

 

With respect to form interrogatory no. 200.4, the court finds the objection on the ground that the information sought is equally available to Plaintiff to be inappropriate.  This objection is more appropriate, for example, when the information sought requires Plaintiff to incur time and expense of searching public records to compile and furnish to the opponent.  The court orders Plaintiff to provide a response that is complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220(a),(b).) 

 

With respect to form interrogatory no. 215.1, the burden is on Plaintiff to justify the objection made, including a preliminary or foundational showing that the “interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.)  Here, Plaintiff has failed to demonstrate this showing.  Moreover, this is a discrimination/wrongful termination case.  Both parties should be aware of the percipient witnesses in this case, and the disclosure of the witnesses interviewed by Plaintiff does not appear to risk revealing Plaintiff’s attorneys tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.  Plaintiff is ordered to provide a further response that complies with Code. 

 

Sanctions are issued against Plaintiff and his attorneys of record in the amount of $950.00. 

Further responses and sanctions are due within 30 days.   Moving Party is to give notice

 

(2) Defendant Bio Protech USA, Inc.’s Motion to Compel Plaintiff Steve Park to Provide Further Responses to its First Set of Special Interrogatories is DENIED.   As to special interrogatories nos. 9-12, the court finds the requests are vague, ambiguous, and overbroad.  In addition, request nos. 9 and 10 improperly contain subparts and is compound in violation of Code of Civil Procedure section 2030.060(f).   As to special interrogatory no. 49, the court finds that the request is overbroad in scope, and is vague and ambiguous.   With respect to special interrogatory no. 50, the court finds the request is not complete in and of itself as required under section 2030.060(c)-(d).  In addition, unlike form interrogatory no. 215.1, this special interrogatory specifically requests the reasons why Plaintiff’s counsel believed that the witnesses had relevant information.  This clearly reflects the attorney’s strategy or tactics in interviewing particular witnesses and is protected by the attorney work product doctrine.   Sanctions are issued against Defendant and its attorneys of record in the amount of $2,200.00.  Sanctions are due within 30 days.

 

Moving Party is to give notice.

 

(3) Defendant Bio Protech USA, Inc.’s Motion to Compel Plaintiff Steve Park to Provide Further Responses to its First Set of Requests for Admissions is GRANTED in part and is DENIED in part.   As to RFAs nos. 1 and 4, the motion is GRANTED.  The court finds that the objections raised are not meritorious.  Plaintiff is ordered to provide a further response that complies with Code.  As to RFAs nos. 20 and 21, the motion is DENIED.  The court finds the request is overbroad in time and scope, and the terms “late coming back from lunch” and “not timely perform” is vague and ambiguous.

 

As to RFA no. 22, the motion is GRANTED.  Although the request is a bit unclear in that Defendant does not specify whether “two days” should be calculated as business or calendar days, Plaintiff stated in the opposition papers that she gave notice on August 9, 2013 (Friday).  Code of Civil Procedure section 2033.220(a) provides that the response shall be as complete and straightforward as the information reasonably available to the responding party permits.  Here, the response provided is clearly not complete and straightforward as the information reasonably available, and therefore the court orders Plaintiff to provide a further response.  In addition, the court finds that the other objections raised are not meritorious.  As to RFA no. 28, the motion is GRANTED.  The court finds the objections raised are not meritorious.  Plaintiff is ordered to provide a further response that complies with Code.

 

As to RFA no. 30, the motion is DENIED. Similar to request for admission no. 20, the request is overbroad in scope and is vague and ambiguous.  Plaintiff does not identify the time period in which the information is sought, and the discovery is not limited to a door located at Defendant’s office.  Further, the request is not complete in and of itself in that it requires Plaintiff to refer to some unidentified email. 

 

Sanctions are issued against Plaintiff and his attorneys of record in the amount of $475.00.  Further responses and sanctions are due within 30 days.   Moving Party is to give notice

 

(4) Defendant Bio Protech USA, Inc.’s Motion to Compel Plaintiff Steve Park to Provide Further Responses to its First Set of Requests for Production of Documents is MOOT in part and is DENIED in part.  Supplemental responses were served on 5-4-15 as to RFP of documents nos. 23, 24, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 49.  Therefore, the motion to compel further responses with respect to these requests is MOOT.

 

With respect to RFP of documents nos. 1-9, 11-12, 15-18, 51-52, and 56-60, to the extent that Defendant is seeking to compel compliance as agreed under Code of Civil Procedure section 2031.320(a), Defendant has failed to sufficiently establish that Plaintiff failed to comply as agreed.  In addition, to the extent Defendant seeks to compel “a supplemental response,” Defendant has failed to establish “good cause” justifying the discovery sought. (Code Civ. Proc., § 2031.310(b)(1).)  To establish good cause, the burden is on Defendant to show: (1) relevance to the subject matter (i.e., how the information sought in the documents would tend to prove or disprove some issue in the case); and (2) specific facts justifying the discovery sought (i.e., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; see also, Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2015) at 8:1495.6.) Therefore, the motion to compel a further response is DENIED.

 

As to RFP nos. 13 and 44, Defendant has misquoted Plaintiff’s response in its separate statement.  CRC 3.1345(c) provides that the separate statement must include the text of each response.  Failure to comply with the separate statement requirement may result in a denial of the motion.  In addition, Defendant has failed to establish “good cause” to compel a further response.  Therefore, the motion to compel a further response is DENIED.

 

As to RFP no. 21, Defendant has failed to establish good cause. Therefore, the motion to compel a further response is DENIED.

 

Sanctions are issued against Defendant and its attorneys of record in the amount of $600.00.  Sanctions are due within 30 days.   Moving Party is to give notice.

 

8

Pellegrin vs Daggett

Motion to Continue MSC and Trial    

 

Ruling:   No T/R. Lead attorneys ordered to appear.

 

Pursuant to CRC 3.1332(c), although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.   Additionally, per CRC 3.1332(c), a Court may grant a continuance only on an affirmative showing of good cause. CRC 3.1332(c) indicates the following circumstances constitute good cause, sufficient to justify a trial continuance:

 

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

 

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

 

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

 

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

 

(5) The addition of a new party if:

 

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

 

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

 

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

 

Additionally, CRC 3.1332(d) indicates that the following factors may be considered:

 

(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

 

In this instance, defendant seeks a continuance based on a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.  (CRC, Rule 3.1332(c)(7).)

 

Paragraph 4 of the Declaration of Edward Burns states:  “On Tuesday, April 15, 2015, attorney David Mains, counsel for Plaintiffs informed me Plaintiff ALYSSA PELLEGRIN, would undergo neuropsychological testing to determine whether she suffered a traumatic brain injury.  It is not clear when the results will be available.  This is the first time Mr. Mains expressed the possibility of such a claim.”    

 

In essence, Defense counsel claims he did not know Plaintiff would be claiming a traumatic brain injury until April. Plaintiffs argue that all the discovery, to date, has indicated mild traumatic injury; i.e., concussion and defense counsel simply failed to appreciate the seriousness of the injury.

 

On the one hand it does appear Defense counsel is not ready for trial due to failure to appreciate the nature of Plaintiff Alyssa’s claims. Alyssa’s mother testified in October 6, 2014 that Alyssa still suffers from severe migraines, she gets nauseous and car sick, and she has difficulty concentrating, and she has difficulty sleeping”—all of which sounds more severe than a minor concussion.  (See Plaintiff’s Exh. C, Deposition of Sarah Beth Pellegrin, page 43:1-3.)

 

On the other hand, Plaintiff’s counsel’s declaration is silent as to what this neuropsychological testing will entail, when the testing is to occur, when the results are due, etc.  

 

This Court needs to know more about this alleged neuropsychological testing, whether and when the results of the tests will be available to defense, etc. Accordingly, lead counsel are ordered to appear at the hearing.

 

9

Pickard vs California TD Specialists

Motion to Be Relieved as Counsel of Record   

 

Ruling:  Off Calendar – no hearing will be held.  Continued to 5-26-15, Dept. C13, at 2 pm.

 

10

Shorter vs Neiman Marcus

(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   

 

Hearings vacated.  Dismissal filed 5/11/2015 to dismiss entire case.

 

11

Wiebe vs Ocwen

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

 

Hearings vacated.  Dismissal filed 5/18/2015 to dismiss entire case.

 

12

Scilabs vs Luberski

(1) Motion for Terminating Sanctions (2) CMC   

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  Continued by MP to 6-16-15, Dept. C13, at 2 pm.  MP is to give notice.