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: 09/01/2015

 

 

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

AMERICREDIT FINANCIAL SERVICES, INC. v. MARCHESE

Application for Writ of Possession

 

Tentative Ruling:   Americredit Financial Services application for writ of possession is GRANTED. MP is to provide notice.

 

To obtain a Writ of Possession, Code of Civil Procedure section 512.010 requires that a Plaintiff:

 

Show the basis of its claim: – Plaintiff submits the Declaration of Brandy Rice, a Team Leader for Americredit Financial Services, Inc. dba GM Financial, which demonstrates the claim arises from a Retail Installment Sales Contract, entered into on 6-6-13. The Contract itself is not between Plaintiff and Defendant, but actually between Defendant and Camino Real Chevrolet.  (See Exh. “A”.)  The Supplemental Declaration filed 8/14 (¶5, Exh. D) establishes the assignment to Plaintiff.   Ms. Rice declares that Defendant defaulted under the agreement, by failing to pay the 11-6-14 installment and all payments due thereafter. (¶7 Decl. of Rice.)

 

Attach the written instrument that is the basis of the claim: – The Retail Installment Sales Contract is attached as Exhibit “A” to the Declaration of Ms. Rice.  A legible copy is attached to the Supplemental Declaration as Exh. A. 

 

Show that the property is wrongfully detained by Defendant: – Plaintiff submits Supplemental declaration of Ms. Rice (¶6) who declares Defendant has refused to surrender the property.  Rice declares that, “Agents for Plaintiff spotted the subject Vehicle at Defendant’s residential address” (Id ¶12.)

 

Show the manner in which Defendant came into possession of the property: – Pursuant to the Declaration of Ms. Rice, Defendant purchased the vehicle.  (Decl of Rice, Exh. A.)

 

Show, to the best of its knowledge, the reason for the detention: – Plaintiff asserts that “Plaintiff has suffered this loss since 11/6/2014, the date upon which possession was demanded, and Defendant’s default occurred.” (Rice declr. ¶10.) Supplemental declaration establishes that Defendant refuses, upon demand, to return the vehicle.

 

Show, to the best of its knowledge, the location of the property and why probable cause exists to believe the property is in that location: – Plaintiff’s Application indicates a belief that the property is held at:  495 Rockfeller, Irvine, CA 92612 or 31 Bloomfield Lane, Rancho Santa Margarita, CA 92688 or DJ Automotive, 26952 Vista Terrace, Lake Forest, CA 92630.

 

The above referenced address is Defendant’s last known residential and/or business address. (¶12 of Rice Dec.)  

 

Provide a description of the property and its value: – Ms. Rice declares that the market value of the vehicle is $36,900 and has attached a copy pf the Kelley Blue Book as Exh. “C”.  (Rice declr. ¶9.)

 

Affirm that the property has not been taken for a tax assessment, or fine, or previously seized: – The Application indicates the property has not been taken for a tax assessment, or fine, or previously seized.  Additionally, Ms. Rice declares the same, within ¶11 of her Declaration.

 

Probable Validity:   Code of Civil Procedure section 512.060 states that a Writ of Possession shall issue if: (1) the Plaintiff has established the probable validity of its claim to possession and (2) the undertaking requirements of section 515.010 are satisfied.  Code of Civil Procedure section 511.090 provides that "a claim has 'probable validity' where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim."

 

Here, Plaintiff has demonstrated the probable validity of its claim, as Plaintiff has demonstrated the existence of a Retail Installment Sales Contract which provides Plaintiff with the right to possession of the subject property, in the event of a default under the agreement.  Plaintiff, additionally, submits a declaration which indicates that such a default occurred.  (Rice Declaration; Exhibit “A”.)

 

Undertaking:  Code of Civil Procedure section 515.010(a) requires a Plaintiff to file an undertaking in an amount not less than twice the value of the Defendant’s interest. 

 

Code of Civil Procedure section 515.010(a) gives further guidance on the issue, by specifying that “the value of defendant’s interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement…”

 

Code of Civil Procedure section 515.010(b) states that, if the court finds that the Defendant has no interest, no undertaking is required.   Here, Defendant has no interest in the vehicle as he owes more than it is worth. No undertaking is required.

 

Defendant’s Undertaking:   Code of Civil Procedure section 515.020 provides that a Defendant may prevent the Plaintiff from taking possession of the property by filing an undertaking in an amount equal to the amount of the Plaintiff’s undertaking as determined by Code of Civil Procedure section 515.010(a) or in an amount determined by the court. 

 

Although Plaintiff requests an undertaking from defendant, it is not clear why this is required if Defendant will no longer maintain possession of the vehicle.

 

2

Bynon    v.   Wells Fargo Bank, N.A.

 

Motion for Preliminary Injunction

 

Ruling:   Off Calendar – no hearing will be held.   Request for Dismissal filed. 

 

3

DAPS, Inc. v. Pensco Trust Company

(1) Demurrer to First Amended Complaint (FAC) (2) Demurrer to FAC (3) CMC

 

Tentative Ruling: (1) Demurrer to FAC:  The Demurrer brought by Defendants S&L Schwartz Recoverable Trust, City National Bank and West Coast Realty Services, Inc. Profit Sharing 401(k) Plan, is OVERRULED, as to the First, Second, Third and Fifth COAs.  The Demurrer is SUSTAINED, with 15 days leave to amend, as to the Fourth COA.   Finally, the Demurrer is SUSTAINED, without leave to amend, as to the Sixth COA.  Defendants’ RFJN is GRANTED.

 

With respect to the First COA for Breach of Contract, as the Complaint alleges “Plaintiff NEVER received any notices whatsoever,” (See ¶26 of FAC), Plaintiff is alleging notices were not sent to the Property, as required by the Deed of Trust.  Thus, Plaintiff sufficiently alleges a term of the Deed of Trust was breached. 

 

Significantly, Defendants have not demonstrated that liability for this breach lies solely with the Trustee.  

While Defendants cite Civil Code section 2924b(b), as establishing it was the obligation of the Trustee, solely, to provide notice, this provision does not support this assertion; rather, Civil Code section 2924b(b) provides that “[t]he mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale, shall do each of the following…”  Thus, Civil Code section 924b(b) allows a variety of entities or individuals to comply with the notice requirements stated therein.

 

Additionally, “[t]he deed of trust constitutes a contract between the trustor and the beneficiary, with the trustee acting as agent for both and acting pursuant to the terms of the instrument and their instructions.” (Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1111.)  Defendants offer no authority or explanation which establishes they are not liable for the Trustee’s conduct or, independently, obligated by the terms of the Deed of Trust.

 

As to the Second COA for Wrongful Foreclosure, the Demurrer is OVERRULED, on the basis Plaintiff’s factual allegations state a violation of Civil Code section 2924b (as detailed by Defendants).  Notably, while Defendants highlight the application of section 2924b, they make no effort to demonstrate that a violation of this provision is insufficient to support a claim for Wrongful Foreclosure.

 

As to the Third COA for Fraudulent Concealment, the Demurrer is OVERRULED as an independent legal duty to provide foreclosure notices is articulated in Civil Code section 2924b. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) 

 

As to the Fourth COA for Violation of Business and Professions Code section 17200, the Demurrer is SUSTAINED with 15 days leave to amend, as Plaintiff failed to allege the claim with particularity, as required. (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619.) 

 

The Demurrer to the Fifth COA for Quiet Title is OVERRULED, as Plaintiff’s claim for Wrongful Foreclosure survives Demurrer, and the claims are intertwined.

 

Last, the Demurrer to the Sixth COA for Violation of Civil Code section 2941.9 is SUSTAINED without leave to amend.  Plaintiff cites no authority and provides no explanation demonstrating Civil Code section 2941.9 establishes rights on behalf of a Trustor.

 

Thus, Plaintiff has not demonstrated standing to bring a claim for Violation of Civil Code section 2941.9 and, rather, the instant claim appears to be a disguised claim improperly challenging Defendants’ authority to foreclose. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155.)

 

(2) Demurrer to FAC: For the same reasons specified above, as to the Demurrer brought by Co-Defendants, the identical Demurrer brought by David Walker is OVERRULED, as to the First, Second, Third and Fifth COAs.  The Demurrer is SUSTAINED with 15 days leave to amend, as to the Fourth COA.   Finally, the Demurrer is SUSTAINED without leave to amend, as to the Sixth COA.

 

Defendant’s RFJN is GRANTED.  

 

4

Doe 1 Parent    v.   Newport Mesa Unified School District

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

 

Tentative Ruling:  (1) Demurrer to Second Amended Petition is SUSTAINED, without leave to amend, as to the Third and Seventh COAs.  SUSTAINED, with 15-days final leave to amend, as to the Sixth COA.

 

The Court takes judicial notice of the Stipulated Agreement, pursuant to Evidence Code section 452(d).  Additionally, it is undisputed that Exhibit “1” is an accurate and correct copy of the Agreement at issue in this action (as referenced within the Complaint).

 

The Demurrer to the Third COA for Breach of Contract is SUSTAINED, without leave to amend, as Plaintiffs failed to allege a breach of any provisions of the Stipulated Agreement.   That Agreement clearly provides: “During the period of suspension which lasts through the start of second semester 2013-14, Student may not participate in nor attend any Newport-Mesa Unified School District activities.  During the stipulated expulsion period which lasts until June 30, 2014 student may not participate in nor attend any CDM activity or be on the CDM site.” (See §6 of Exhibit “1”.)

 

To the extent Plaintiff intended to allege a continuing bar, past the terms stated within the Stipulated Agreement, Plaintiff failed to clearly state the same. (See ¶79-¶83 of SAC.)  Further, a review of the Stipulated Agreement revealed no provisions requiring the conduct requested by Plaintiff.  At most, the Agreement indicates that: “All records regarding [Plaintiff’s] involvement in this situation will be sealed upon execution of this Stipulation and destroyed upon graduation of the student.” (See §7 of Exhibit “1”.) 

 

While Plaintiff here alleges her records have not been expunged, Plaintiff does not allege she has graduated, such as to trigger this requirement. (See ¶83 of SAC.)  Further, the Stipulated Agreement indicates “Student has the right to return to CdM at the end of this expulsion 6/30/2014.” (See §8 of Exhibit “1”.)    

 

There is no provision referencing the timing of Plaintiff’s registration for Fall 2014 classes or letters of recommendation. (See ¶83 of SAC.)   Moreover, as before, Plaintiffs fail to allege the manner in which the Behavior Contract differed from the Stipulated Agreement and fails to explain how the imposition of the first constitutes a breach of the second.  (See ¶82 of the SAC.)

 

Based on all of the above, the claim for Breach of Contract is substantially unchanged from the prior incarnation, to which this Court previously SUSTAINED Defendant’s Demurrer.   Consequently, the Demurrer is again SUSTAINED, this time without leave to amend, as Plaintiffs have demonstrated an inability to adequately state this claim.

 

As to the Sixth COA, the Court previously SUSTAINED Defendants’ Demurrer to this claim, on the basis: (1) Plaintiff failed to identify the statutory authority for asserting this claim against the District; and (2) Plaintiff’s claim lacked specificity. (See March 10, 2015 Minute Order.)   A review of the Second Amended Complaint reveals Plaintiffs have failed to correct either defect.   Once again, the Sixth COA contains no reference to any statutory authority for asserting this claim.   Additionally, Plaintiffs’ Sixth COA includes no specific allegations of any misrepresentations.  At most, the claim incorporates ¶1 through ¶122 of the SAC.

 

Plaintiffs’ late filed Opposition thereafter directs the Court to review “Paragraphs 54 through 70.” (See Opposition: 7:24); however, no further analysis or discussion is provided.    The Court notes the vast majority of the allegations contained within ¶54 through ¶70, contain no statements or representations made by Defendants.

 

Further, by identifying the relevant allegations, only, within their Opposition and through general reference to approximately 20 paragraphs of the 122 paragraphs incorporated into the claim, Plaintiffs have prevented Defendants from demurring to the specific allegations upon which the claim is based.

 

Moreover, the reference to approximately 20 paragraphs is insufficient to allow Defendants to “understand fully the nature of the charges made.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

 

Based on the above, the Demurrer to the Sixth COA is SUSTAINED; however, Plaintiffs are granted final leave to amend, to clarify.  Plaintiffs are advised that the specific statements relied upon for this claim, must be identified within the cause of action.  If they wish to incorporate prior allegations into the Fraudulent Inducement Cause of Action, they must do so by identifying the relevant paragraphs and lines. Additionally, Plaintiffs are ordered to provide an underlined Third Amended Petition/ Complaint, which identifies the corrections and new allegations.

 

Last, the Demurrer to the Seventh COA is SUSTAINED, without leave to amend.  “Three required elements of the cause of action for public disclosure of private facts may be discerned from decisions of our courts.” (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808.)  “First, the disclosure of private facts must be a public disclosure. [citations].  Second, the facts disclosed must be private facts, and not public ones. [citations].  Third, the matter made public must be one which would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.” (Id. at 808-809.)

 

Here, the facts alleged are insufficient to demonstrate Defendants revealed private facts, of an offensive and objectionable nature.  At most, Plaintiff alleges public statements were made about the “students” alleged to have cheated and that the circumstances of the event revealed Plaintiff’s identity. (See ¶129-¶135.)

 

(2) Motion to Strike: MOOT, with respect to the request included within the Sixth COA.  GRANTED as to the remainder, without leave to amend, on the basis no allegations demonstrating malice, oppression or fraud could be located (or have been identified) within the Complaint.

 

With respect to the claim for False Imprisonment, as argued by Defendants, the majority of the allegations are directed towards the conduct of school guards. (See ¶35-¶49 of SAC.)  At most, Plaintiff alleges Defendants Scott, Olguin, Gogel and Tolzda failed to call Plaintiff’s parent when Plaintiff was detained at school. (¶47 of SAC.)   Additionally, Plaintiff alleges these individuals instructed the guards to remove Plaintiff from class. (See ¶35 of SAC.)  These allegations are insufficient to demonstrate malice, oppression or fraud. (See Civ. Code, §3294.)

 

Last, the Motion is GRANTED, without leave to amend, as punitive damages are not available in suits under section 1983 against state officials in their official capacities. (See Mitchell v. Dupnik (9th Cir. 1996) 75 F.3d 517, 527.)  Plaintiff’s Opposition concludes “punitive damages are sought against the individual defendants in their individual capacities,” but the only conduct identified within the Complaint occurred while Defendants were performing official functions.

 

5

Dounel    v.   Duel

Motion to Compel Deposition (Oral or Written)

 

Tentative Ruling:  Defendants’ Motion to Compel Deposition is GRANTED

 

The evidence before the Court indicates Defendant properly noticed the deposition of Plaintiff, and Plaintiff refused to attend, first because a sanctions motion was pending (Motion Exhs. B, C & F), and then because Defendant’s deposition was not yet completed (Reply Exh. 2).  Plaintiff argues some agreement had been reached with former defense counsel Mr. Weinberg to delay Plaintiff’s deposition, but neither the written communications from Mr. Weinberg nor Mr. Weinberg’s own declaration submitted with the Motion comport with that claim. (See Weinberg Decl., and Exhs. B, D, and F attached thereto.)  Nor is any authority offered by Plaintiff to suggest Plaintiff could unilaterally refuse to appear for a deposition because a motion for sanctions was pending, or because Defendant’s deposition had not been completed. Nor was any protective order sought by Plaintiff.  The Court will therefore compel Plaintiff to appear for deposition.  Counsel should be prepared to discuss the date for that deposition at the hearing.

 

As no separate statement was submitted as to the documents sought in the Notice of Rescheduled Deposition, as required for a motion to compel relate thereto under CRC 3.1345(a)(5), the particular categories in the document requests are not properly before the Court on this motion.  However, the parties are directed to meaningfully meet and confer on any remaining disagreements related thereto prior to the deposition.

 

Defendant’s request for sanctions is GRANTED, as Plaintiff has not presented evidence of any substantial justification for refusing to appear for deposition, but in the reduced amount of $1,350, based on the evidence presented in the Motion. (Weinberg Decl., ¶14; Code Civ. Proc., § 2025.450(g)(1).)  Such sanctions are to be paid by Plaintiff to Defendant, through Defendant’s counsel of record, within 30 days after service of notice of this ruling.  Defendant is to give notice.

 

6

General Electric Capital Corporation    v.   Promedia, Inc.

 

(1) Application for Writ of Possession (2) CMC

 

Tentative Ruling:   The Court GRANTS the effectively unopposed Application for Writ of Possession filed by Plaintiff General Electric Capital Corporation as to the specific equipment identified therein (see Decl. Exh. I), subject to submission of and Court approval of an appropriate proposed Order for Writ of Possession which comports with this ruling.

 

No undertaking shall be required of Plaintiff; Defendant’s undertaking amount shall be set at $293,000.

 

Moving Party is to give notice.

 

7

Justiniani    v.   Berg

 

Motion to Compel Production

 

Ruling:  Off Calendar – no hearing will be held.   Notice of Settlement filed. 

 

8

Max Media, Inc.    v.   CortiSlim International, Inc.

 

(1-5) Motions to Be Relieved as Counsel of Record (6) CMC

 

Ruling:  (1-6) Off Calendar – no hearing will be held.  (1-5) The Motions filed by Charles Perry of the Law Offices of Charles Perry to be relieved as counsel of record for Defendants CortiSlim International, LLC, CortiSlim International, Inc., John Neubauer, and National Marketing, Inc., and Alan Sporn are GRANTED, subject to updating the proposed orders as to the new CMC date, with such relief to be effective upon service of those signed orders on the clients.

 

(6) CMC is continued to 10-19-15, Dept. C13, at 8:45 am. 

 

Moving counsel is to give notice.

 

9

Palm Drive Court, LLC    v.   Jain

Motion for Leave to File Amended Complaint

 

Ruling:  Off Calendar – no hearing will be held.  Notice of Withdrawal filed.

10

Rivera    v.   Remart

Motion for Leave to Intervene

 

Ruling:  Off Calendar – no hearing will be held.  Notice of Withdrawal filed.

11

S. L. Contursi, Inc. Rare Coin Gallery    v.   Coe

(1) Demurrer to First Amended Cross-Complaint (FAXC) (2) CMC

 

Tentative Ruling:   Demurrer to FAXC is SUSTAINED, in its entirety, with 15 days leave to amend.  MP is to give notice. 

 

Cross-Complainant does not dispute Cross-Defendants’ assertion the FAXC is identical to the initial Cross-Complaint, with the exception of ¶23 through ¶26.  A review of these allegations demonstrates, at best, an allegation that “Griffiths claimed Contursi cheated on the value of the coins, but he maintained from the beginning and for several years that Dr. Coe would receive the $500,000.00 in full, plus interest ‘if it took too long.’” (See ¶26 of FAXC.)  Significantly, no connection between this allegation and Complainant’s claims for Violation of the CLRA, Breach of Warranty or Breach of Fiduciary Duty are apparent.  Indeed, although no Demurrer based on uncertainty has been brought, Complainant fails to specifically identify the conduct which forms the basis of each claim, rendering statute of limitations analysis for the same difficult.

 

Additionally, the above allegation does not reference the moving Defendants (Contursi and RCW). Nor has Cross-Complainant identified any allegation that Griffith was acting as the moving Defendants’ agent, when these statements were made.

 

"When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory." (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.)   

 

More specifically, “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

 

Here, it is wholly unclear when Complainant allegedly discovered the conduct which forms the basis of the claims against the moving Defendants (or, even, what that conduct precisely is).   Additionally, it is unclear how statements allegedly made by Co-Defendant Griffith prevented Complainant from discovering the same.

 

As a result, the instant Demurrer is SUSTAINED, in its entirety, with 15 days leave to amend; however, Cross-Complainant is cautioned that he must demonstrate delayed accrual of each of the claims and allege facts supporting the same.   To do so, Complainant must clarify the conduct upon which each claim is based.

 

12

Tran    v.   Pennymac Corporation

Motion to Appear Pro Hac Vice

 

Ruling:  Off Calendar – no hearing will be held.  Motion granted via Ex Parte application on 5-18-15. 

 

13

Williams    v.   Deutsche Bank Trust Company America

 

(1-2) Demurrers to Amended Complaint (3) CMC

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  CONTINUED to 9-17-15, Dept. C13 at 2 pm.

14

In re Fontaine

 

(1) Motion for Judgment on the Pleadings (2) Motion for Discharge (3) Motion for Leave to Amend

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  CONTINUED to 9-22-15, Dept. C13 at 2 pm.