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.

NOTICE: Law & Motion for 7/22/2014 will be heard on 7/23/2014 at 10:00am

 

Date: 07/23/14

 

 

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Case Name

Tentative

 

 

 

1

Carson Estate Trust vs Colorbok, Inc.

Motion to be Relieved as Counsel of Record

 

Ruling:   Off Calendar – no hearing will be held.   The Motion to Be Relieved as Counsel of Record is denied without prejudice.  The Court is inclined to grant the Motion but orders Mr. Sorenson to explain the discrepancy between §3a(1) of his declaration and the POS in any renewed motion.

 

Although MP’s grounds for seeking to withdraw are sufficient and he has used and served all required Judicial Council Forms, there is one problem.  In the Attorney Declaration, Mr. Sorenson declares he personally served the client with copies of the motion papers. However, the POS attached to the motion indicates the client was mail served.  If in fact the client was mail served, moving Attorney needs to confirm that the address is current, which he did not do.  Moving Attorney is ordered to clear up the discrepancy in any renewed papers.

2

Express Merchant Processing vs Thergood

Off calendar 1st Amended Cross-Complaint filed.

CMC continued to 9/16/2014 @ 2pm.

3

Garcia vs. Wells Fargo Bank

Off calendar Notice of Removal filed

4

Hafezi vs Bank of America

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

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  Demurrer to FAC by Defendants Select Portfolio Servicing, Inc., Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Countrywide Financial Corp., and Countrywide Home Loans, Inc. and the CMC are CONTINUED to August 19, 2014, at 2 pm, in this Department.  The Demurrer relies in large part on a Request for Judicial Notice that was not filed or served with the Demurrer.  Defendants may file and serve a Request for Judicial Notice in advance of the new hearing date in accordance with the filing and service requirements of the Code of Civil Procedure.  Any opposition and reply papers are to be similarly filed and served in accordance with the new hearing date.

 

Defendants are ordered to give notice.

 

The Demurrer is unopposed by Plaintiffs.  Defendants indicate in their CMC Statement - filed on 7-8-14 - that the subject loan has been paid in full, and they are unsure whether Plaintiffs intend to pursue this action.  Defendants request a ruling on their Demurrer. However, the Demurrer relies heavily on the Court taking judicial notice of the loan documents, but a RFJN was not filed or served with this Demurrer. Among other things, Defendants contend the loan documents establish that Plaintiff Hafezi was not a party to the note and therefore has no claim, none of the defendants other than SPS as servicers holds any interest in the subject loan, and the note and deed of trust contradicts Plaintiffs’ allegations and states that payments will be applied to past due amounts first.

5

King vs Elsayed

Off calendar Stipulation for Entry of Order re Good Faith Settlement signed on 7/10/2014

6

Ley Drew, Inc. vs Lucero

Motion to be Relieved as Counsel of Record

 

Ruling:   Off Calendar – no hearing will be held.  Motion to be Relieved is GRANTED, as Counsel has substantially complied with the requirements of CRC 3.1362.

 

As Counsel has substantially complied with the requirements of CRC 3.1362, the Motion is GRANTED; however, the Court will complete the Order by: (1) Checking box 3(b), to indicate service on the client was completed by mail; (2) Checking box 5(a) to indicate the order is effective upon the filing of a Proof of Service of the signed order on the client; and (3) to indicate the client’s last known address within section 6 (Counsel is to confirm - with the Clerk, by noon on 7-23-14 - that this is the address of service).

7

Mediterranean Food vs T.B. Holdings

Motion for Summary Judgment and/or SAI

 

Ruling:   Off Calendar – no hearing will be held.   Defendant Ghayoumi’s MSJ is MOOT; Plaintiff filed a Dismissal with Prejudice as to this defendant on 5-12-14.

8

Orange County Employees’ Association vs County of Orange

Demurrer to Second Amended Complaint (SAC)

 

Tentative Ruling:    Defendant POST’s demurrer to the Plaintiff’s SAC is sustained without leave to amend.

 

The controversy here is between Plaintiff and Defendant County/Sheriff and as a whole, and in general it does not appear this Court can grant any requested relief as against POST.

 

1st COA (Declaratory Relief):   This COA states, “An actual and justiciable controversy has arisen and now exist, between Plaintiff on one hand, and the Defendants County and Sheriff on the other hand, as to whether said Defendants, as a consequence of any alleged determination by POST as to the inadequacy of training of Sheriff’s Special Officers,  are unlawfully  and/or improperly prohibiting Plaintiff’s represented Sheriff Special Officers, who are duly appointed and functioning peace officers, from carrying a concealed weapon off duty without obtaining a concealed weapons permit.”  (SAC ¶13.)

 

First, as mentioned above, the controversy is between Plaintiff and the County/Sheriff. Although Plaintiff now adds the Sheriff made her decision based on a determination by POST, that still does not change the fact that POST has no power to decide who becomes a peace officer and who is allowed to carry concealed weapons. Rather, POST’s role is to adopt certain rules establishing minimum standards relating to fitness of officers. See below:

 

Penal Code section 13510

(a) For the purpose of raising the level of competence of local law enforcement officers, the commission shall adopt, and may from time to time amend, rules establishing minimum standards relating to physical, mental, and moral fitness that shall govern the recruitment of any city police officers, peace officer members of a county sheriff's office, marshals or deputy marshals, peace officer members of a county coroner's office notwithstanding…

Although POST may deny services and benefits to a department until it is reinstated in the program upon demonstrating that, to POST satisfaction, that it will adhere to the regulations (Cal. Code Regs, tit.11, §1010(a)(8)(c)) that does not mean it ultimately makes the decisions about who becomes peace officers, as opposed to public officers, and who may carry concealed weapons.  (Litzius v. Whitmore (1970) 28 4 Cal.App.3d 244, 249, quoting Cronin v. Civil Service Com. of Los Angeles County (1925) 71 Cal.App. 633, 636 ["[A] county sheriff has 'the absolute right to appoint and discharge any and all deputies and other employees required for the conduct of the office' to which he has been elected."].)

Here, there is no allegation by Plaintiff that the determination by POST as to the inadequacy was somehow wrong or that POST should be forced to re-review that determination.

Second, the COA is moot. The SAC itself acknowledges that as of May 6, 2013, SSOs are no longer recognized as peace officers; and therefore no longer allowed to carry concealed weapons without a permit in any event.  (SAC ¶25, 37.)  Although Plaintiff argues the Sheriff could re-designate the SSOs status and therefore it is not moot, this has nothing to do with POST.  POST has nothing to do with the designation of peace officers v. public officers.  POST’s “purpose” only relates to the training of peace officers, and not public officers.  (Pen. Code, §13510.)  The demurrer to this COA is moot for that additional reason.

POST is not a necessary party to this cause of action because there is no controversy as to it. Had Plaintiff pled facts that POST’s review of the training was wrong, politically motivated, used the wrong criteria, etc., then perhaps a controversy involving POST would arise, but none of those facts have been pled.

2nd COA (Injunctive Relief}:   This COA asks the Court to restrain and enjoin “Defendants from enforcing their June 27, 2012 prohibition of Sheriff’s Special Officers carrying concealed firearms off-duty until they are issued a concealed weapons permit (CCW) from the Department…”   The 6-27-12 prohibition was not POST’s prohibition, and based on the authorities mentioned above, POST does not have the ability to threaten to prohibit the SSOs from carrying concealed fire-arms off-duty. This was Sheriff Hutchen’s decision. Even if it was based on POST’s determination that SSOs lacked the requisite degree of training, POST did not make or enforce the prohibition.

4th COA (Equitable Estoppel):   Being unsuccessful on a promissory estoppel claim, Plaintiff has now repackaged the facts as Equitable Estoppel. The elements of equitable estoppel are as follows:

To establish a claim of estoppel against the government a litigant must prove the same four elements as make up a cause of action for equitable estoppel against a private party as well as a fifth element which applies only to government. The first four elements are: “(1) the party to be estopped must be apprised of the facts;

“(2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended;

“(3) the other party must be ignorant of the true state of facts; and

“(4) he must rely upon the conduct to his injury.”

 

(Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, emphasis added.)

 

The fifth element requires the plaintiff to demonstrate that the injury to his personal interests if the government is not estopped exceeds the injury to the public interest if the government is estopped. Thus an estoppel will not be applied against the government if to do so would effectively nullify “a strong rule of policy, adopted for the benefit of the public, ...” ( County of San Diego v. Cal. Water, etc., Co. (1947) 30 Cal.2d 817, 829-830 [186 P.2d 124, 175 A.L.R. 747].)

 

(La Canada Flintridge Development Corp. v. Department of Transportation (1985) 166 Cal.App.3d 206, 219.)   Here, (1) POST has known since September 2000 that SSOs were vested with peace officer authority (SAC¶33) (2) POST intended that its 12 year affirmation that SSOs were in compliance w/ POST minimum training standards  to be considered peace officers would induce employees to accept employment with the Sheriff’s department (SAC¶34, 35) (the Court notes this is reading the SAC liberally). (3) There are no facts pled that the SSOs were ignorant of the true state of facts; that is, there are no facts pled that either the Sheriff/County or SSOs knew all along the training the SSOs were in fact receiving was not compliant. (4) There is no allegation the SSOs relied on any conduct or lack thereof by POST. Rather, the SSOs relied on the representations of Defendant County and Sheriff.  (SAC ¶¶37, 38.) There are no facts that POST caused the SSOs injury. This is because the decision to treat the SSOs to public officers was not POST’s decision. The COA is also flawed for the relief it requests against POST. It requests in ¶39 that POST restore the conferral of Penal Code sections 830.33/830.36, and/or provide or facilitate necessary training of POST services.  First, as mentioned in conjunction w/ the 1st COA, POST cannot confer public or peace officer status on the SSOs.  Second, as to facilitating necessary training, re no facts are pled that POST has been asked to provide additional training or denied training prior to Sheriff making her decision.

 

5th COA (Injunctive relief):   This COA, seeking relief of enjoining defendants from diminishing the legal authority of such employees to “public officers” or “Security Officers,” fails for the same reasons as discussed in the 1st COA.

 

6th COA (Petition for Writ of Mandate):   This claim fails, as POST does not have a present and ministerial duty to restore or facilitate the recognition of employees in the position of SSOs as vested with authority under Penal Code sections 830.33 and/or 830.36.  Although POST may ultimately have a duty to provide and/or facilitate any additional training at some point, that issue is not ripe. There is no indication POST ever declined to provide training in order for the SSOs to keep their peace officer status.

 

RFJN is denied. The Court’s ruling on the prior demurrer is unnecessary to the Court’s determination herein. MP is to give notice.

9

Soltan vs Wintemute

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

 

Tentative Ruling:   (2) Motion to Quash Service and to Dismiss Complaint by Specially Appearing Defendant Eric Wintemute is GRANTED.  The Court takes judicial notice of the docket in In re Marriage of Wintemute and Soltan, Orange County Superior Court Case No. 10 D 004337, filed in May 2010 (the “Family Court Action”), and the Stipulated Judgment entered on June 24, 2014, by the Family Court in that proceeding.  Plaintiff’s claims against defendant Wintemute all relate to the ownership and division of property owned by Plaintiff and Wintemute -- which are under the exclusive jurisdiction of the Family Court.  Accordingly, this Court declines to exercise jurisdiction over Wintemute.  (Neal v. Superior Court (2001) 90 Cal. App. 4th 22).  Wintemute’s arguments regarding whether service on him of the summons and complaint was defective, and whether Plaintiff delayed in prosecution, are moot.

 

(1) Demurrer by Defendants American Vanguard Corporation, Gemchem, Inc., and Amvac Chemical Corporation

 

The Stay issued by this Court on March 6, 2014, remains in place as to defendants American Vanguard Corporation, Gemchem, Inc., and Amvac Chemical Corporation (the “Corporate Defendants”).  The Court sets an OSC Re Dismissal of this action as to the Corporate Defendants for September 23, 2014, at 2 pm, in this Department.  Defendants’ unopposed Demurrer is continued to October 7, 2014, at 2 pm in this Department, which will go off calendar upon Plaintiff’s dismissal of this action.

 

According to the June 24 Stipulated Judgment entered by the Family Court, Plaintiff and Wintemute settled all claims between them that were pending in the Family Court Action,  As part of that Stipulated Judgment, Plaintiff agreed -- and was ordered by the Family Court -- to dismiss this lawsuit against Petitioner, American Vanguard Corporation, and its subsidiaries with prejudice.  (Defendants’ Second RFJN, Exh. “A,” [see, Attachment to Stipulated Judgment. p. 3].)  Plaintiff contends her obligation to dismiss this action is conditioned on the performance by Wintemute of obligations that have not yet occurred.  Whether Plaintiff’s obligation to dismiss this action is conditional, and whether Wintemute has breached or failed to comply with the Judgment, are issues that must be raised and determined by the Family Court.

10

Zwierlein vs Glazer

Off calendar by the moving party.

CMC hearing continued to 9/2/2014 @ 2pm.