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.

Date: 04/15/14

 

#8 has been updated.

 

 

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Case Name

Tentative

 

 

 

1

American Express Centurion Bank    v.   Simpson

Motion to Set Aside/Vacate Default and Default Judgment

 

Ruling:  Off Calendar – no hearing will be held.    On January 15, 2014, Defendant filed a Motion to Set Aside the Default and Default Judgment, but failed to file Proof of Service of the motion papers on Plaintiff’s counsel.  This Motion is continued to May 20, 2014, Dept. C13, at 2 pm, for Moving Party to file Proof of Service showing the moving papers were properly served on Plaintiff.   (Code Civ. Proc., § 1005(b).)     

 

 

2

Bridget Wiseman, et al.    v.   City of Fullerton

(1) Demurrer to Second Amended Complaint (SAC) (CITY/Medina) (2) Demurrer to SAC (Mater)

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Demurrer to SAC (City of Fullerton and Medina):  OVERRULED, as to the First COA for Wrongful Death.  SUSTAINED, with 20 days leave to amend, as to the Second COA for Negligence.   Defendants’ RFJN is GRANTED.

 

First, the Court finds Plaintiff’s Government Claim sufficiently notified Defendants of the basis of Plaintiff’s claims.  Defendants argue Plaintiff’s SAC fatally varies from the Government Claim, as Plaintiff did not reference Government Code section 844.6(d) or Government Code section 845.6, within the claim; however, Defendants fail to demonstrate the inclusion of these codes requires Plaintiff to rely on a “complete shift” in factual allegations and/or demonstrates an “effort to premise civil liability” on “different times or by different persons.” (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 278)   A review of the Government Claim (Exh. “A” of both RFJNs) reveals allegations Defendants “failed to monitor, supervise and prevent Dean Francis Gochenour’s suicide,” “failed to implement appropriate procedures in order to keep Dean Francis Gochenour safe,”  and “failed…to take steps to prevent Dean Francis Gochenour’s suicide.”  (Exh. “A” RFJN).   The allegation that one of these steps included the failure to obtain medical care, is merely an elaboration on the statement in the Government Claim. (Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 448.)

 

Second, the Court finds a sufficient statutory basis for Plaintiff’s claims: Government Code section 845.6 provides for liability against both a public entity and a public employee, where medical care is knowingly denied to a prisoner.  Plaintiff alleges this statute as a basis for the First and Second COAs.  Arguably, Defendants’ alleged failure to refer Mr. Gochenour for “mental health/suicide risk assessment” qualifies as a failure to provide “medical care.”  Also, as the Complaint clearly alleges Defendant Medina and Mater, as agents for the City (¶6 of SAC), knew or should have known Mr. Gochenour was suicidal (¶20-¶21 of SAC), the allegations are sufficient to invoke this provision.

 

Third, pursuant to Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298 and Giraldo v. Department of Correction and Rehabilitation (2009) 168 Cal.App.4th 231, the Court finds “[a] person who has custody of another owes a duty of reasonable care to protect the other from foreseeable harm.” (Id. at 247.)  Likewise, following the guidance provided in Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, the “general character of [this] event” is “likely enough in the setting of modern life” that a “reasonably thoughtful [person] would take account of it in guiding practical conduct. (Id. at 1273.)  Thus, the harm was “foreseeable” for purposes of establishing a duty.   This is especially so, given the undisputed existence of California Code of Regulations sections 1024 and 1219, requiring state-wide training on suicide prevention in city jails and evaluation of arrestees.  As the decedent is alleged to have been in Defendant’s custody and control (¶13-¶14 of SAC), a duty existed.

 

Fourth, the Court finds Defendants have failed to demonstrate the clear application of any government immunity, to the facts of this case.  Based on the above, the Demurrer to the First COA for Wrongful Death is OVERRULED.

 

However, the Demurrer to the Second Cause of Action for Negligence is SUSTAINED, with leave to amend.  As explained by Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, a “survivor cause of action” is a “separate and distinct cause of action which belonged to the decedent before death, but by statute survives that event.”  (Id. at 1264.)  Further, “[i]n the typical survivor action, the damages recoverable by the personal representative or successor in interest on a decedent’s cause of action are limited by statute to ‘the loss or damage that the decedent sustained or incurred before death…” (Id. at 1264-1265; citing Code Civ. Proc., §377.34.)  As the only damages alleged within the Negligence claim is Mr. Gochenour’s death (¶38 of SAC), necessarily damages were not sustained by Mr. Gochenour, prior thereto.   Based on the above, a claim for Negligence has not been stated.  Leave to amend is GRANTED to allow Plaintiff an opportunity to allege alternative damages were suffered by Mr. Gochenour.

 

(2) Demurrer to SAC (Mater):  OVERRULED, as to the First COA for Wrongful Death.  SUSTAINED, with 20 days leave to amend, as to the Second and Third COAs.  Additionally, Defendant’s RFJN is GRANTED.

 

The Demurrer to the First COA is OVERRULED, for the reasons stated above re:  the Demurrer brought by the City of Fullerton and Carlos Medina.  Similarly, the Demurrer to the Second COA is SUSTAINED, with 20 days leave to amend, for the reasons stated above.

 

The Demurrer to the Third COA is SUSTAINED, with 20 days leave to amend, as Plaintiff does not allege threats of violence were made by Defendant, against the decedent, as required to state a claim under Civil Code sections 51.7 and 52.1.  (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486 and CACI 3066.)

 

 

3

Buder    v.   EMC Mortgage Corporation

Motion for Summary Judgment and/or SAI

 

Ruling:  Off Calendar – Continued per Stipulation to 7-29-14, Dept. C13, at 2 pm.

4

Castro    v.   Ralphs Grocery Company

Motion to Compel Answers to Special Irogs

 

Ruling:  Off Calendar – no hearing will be held.    The Motion by Plaintiff Ernest Castro to Compel Further Responses to Special Irogs is DENIED as to Irog Nos. 10, 46-50, 58, 59, 61-64, 71, 84-89 and 93.  If the information requested in Irogs Nos. 90-91 which Defendant has agreed to provide has not yet been provided by 4-15-14, the Motion will be GRANTED as to these Irogs, and Defendant will be ordered to provide verified supplemental responses within 20 days.

 

The Court strongly encourages counsel to meet and confer in good faith regarding discovery in this case, and to prepare and submit a Stipulation and Proposed Protective Order, if necessary, to protect private information of third parties that may be relevant and discoverable. For instance, with respect to Irog Nos. 61, 64, 71, 84, 85, 86, 87 and 88, while they are objectionable as drafted, they do also encompass a request for basic contact information for potential witnesses from the store in which Plaintiff worked, including Plaintiff’s supervisors and co-workers, and statistical data, that may be discoverable.   Moving Party is to give notice.

 

Basis for Rulings on Specific Irogs:  

 

No. 10 (seeks the names of all employees in similar position as Plaintiff who were fired in the last 10 years), is overly broad as to both time and scope, and seeks private information of non-witness third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.) 

 

No. 46 (asks Defendant to identify documents that “involve or otherwise reflect” any claim against Defendant during the past ten years for wrongful termination, or harassment), is overly broad as to both time and scope, and seeks private information of non-witness third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.)  The request is also appears unduly burdensome given the size and number of locations and employees of Defendant, and the overly broad description of the documents.

 

Nos. 47, 48 and 49 (asks Defendant to provide contact information for (No. 47) all employees who were fired, (No. 48) were forced to resign, (No. 49) complained of harassment, retaliation, discrimination, or wrongful termination within the last 10 years at the same store where Plaintiff worked), is overly broad as to both time and scope, and seeks private information of non-witness third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.)

 

No. 50 (asks Defendant to state the “name, age, gender, marital status, race and ancestry” and contact information for all individuals who made a “formal or informal” complaint to defendant concerning his or her “age, gender, race or ancestry during the past ten years”) is overly broad as to both time and scope, and seeks private information of non-witness third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.)

 

No. 58  (seeks the identity of employees of Defendants who drafted any portion of any “Affirmative Action Policy Plan” that defendant has used or instituted in last five years)  While the existence and content of Defendant’s employment policies may be relevant, which Defendant represents they have already produced, the identity of all employees who drafted any part of them is overbroad and does not appear to be relevant or likely to lead to the discovery of admissible evidence. 

 

No. 59 (asks Defendant to state precisely how Defendant has implemented any type of Affirmative Action Policy Plan during the last five years), is overly broad, vague and ambiguous as drafted. 

 

Nos. 61, 84 (seeks the name, age, race, gender, marital status, and ancestry, and contact information for all employees who worked in plaintiff’s department, division or work area during the last five years of Plaintiff’s employment (84 not limited by time)) are overly broad as to both time and scope, and seeks private information of third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.)

 

Nos. 62 and 63 (seeks the name, age, race, gender, marital status, and ancestry, and contact information for anyone who reported to defendant that any employee made disparaging, discriminatory, harassing, or otherwise inappropriate comments about the age, race, gender, marital status, and ancestry of individuals during the last five years of Plaintiff’s employment, and the exact statement made) are vague and ambiguous, and overly broad as to both time and scope, and seeks private information of non-witness third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.)

 

Nos. 64, 85, 86 (seeks the “name, age, race, gender, marital status, and ancestry” of each person who supervised or managed Plaintiff, and who had input on the decision to terminate plaintiff) is overly broad as drafted as to scope, and seeks private (and irrelevant) information of third parties without a showing of relevance and a compelling need for the information through this manner of discovery. (Life Technologies Corp. v. Superior Court (2011) 197 Cal. App. 4th 640, 652-653.) 

 

No. 71 (asks Defendant to state the contact information for all individuals who had authority to hire, fire, etc., Plaintiff) is overly broad in that it seeks the identity and contact information of all individuals, without regard to time or location, to hire, fire, etc. the Plaintiff.

 

Nos. 87, 88 (requests the number of persons of plaintiff’s age, race, gender, marital status and ancestry whose employment has been involuntarily terminated (87), hired (88) by defendant during the past ten years) is vague and ambiguous as drafted, and overly broad.  It is overly broad as to time and it not clear whether Plaintiff is seeking statistics in each of those categories individually or individuals or fit all of those categories, and Plaintiff has not defined the categories.

 

No. 89 (seeks the title and location of each document that reflects defendant’s statistical employment practices with regard to employees’ and applicants age, race, gender, marital status and ancestry) is vague and ambiguous as to “statistical employment practices,” and unintelligible.

 

No. 93 (asks how defendant has “preserved” the information about race, gender, marital status, national origin, and age of each employee and applicant during the last ten years), is vague and ambiguous, and overly broad in that it purports to seek information that is not relevant to the subject matter of the action or likely to lead to the discovery of admissible evidence.

 

5

Cervantes    v.   JBM Sport Truck, Inc.

(1) Motion to Compel Further Responses to Form Irogs (2) Motion to Compel Production

 

Ruling:  (1-2) Off Calendar – no hearing will be held.    Notice of Settlement filed. 

 

6

Dack Marasigan, LLP    v.   Miller

Motion for Summary Judgment and/or SAI

 

Tentative Ruling:   Plaintiff’s Motion for Summary Judgment, or in the alternative, summary adjudication of issues, is GRANTED.   Plaintiff has submitted admissible evidence sufficient to meet its initial burden on summary judgment.  (See UMF Nos. 1-17; Dack Decl., ¶¶ 2-18, and App. Exs. 1-3.) The burden thus shifts to Defendant to show by admissible evidence that a triable issue of material fact exists as to a claim or a defense thereto. (Code Civ. Proc., § 437c(p)(1).)  Defendant has failed to meet that burden: as she failed to file any opposition to the instant motion, she has not identified any triable issue of fact as to any claim asserted in the Complaint.    Plaintiff is thus entitled to judgment in this action.  Plaintiff is to prepare, file and serve a proposed order and proposed judgment consistent with this ruling.  Plaintiff is to give notice of this ruling.

 

 

 

MSJ Standard:  The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and he is entitled to judgment as a matter of law.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  Moving party also bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries that burden, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.  (Id.)

A plaintiff seeking summary judgment has the initial burden of producing admissible evidence on each element of its claim, including both the fact of and amount of damages, but does not have an initial burden of disproving affirmative defenses or cross-claims asserted by defendant. (Weil & Brown, Cal. Prac. Guide:  Civ. Pro. Before Trial (The Rutter Group 2014)), §10:235; Code Civ. Proc., § 437c(p)(1), Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal. App. 4th 1093, 1106.)  Where the plaintiff would bear the burden of proof by a preponderance of evidence at trial, it must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not: otherwise, it would not be entitled to judgment as a matter of law. (In re Peterson (2007) 156 Cal.App.4th 676, 687; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851; Code Civ. Proc., § 437c(p)(1).)

If the plaintiff meets its initial burden, the burden then shifts to the defendant to show by admissible evidence that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c(p)(1).)  However, until the plaintiff meets its burden, defendant has no burden to oppose. (Id.; Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th at 468.)

“Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party's right to a trial, the moving party must make a strong showing.  His affidavits are strictly construed and the opposing party's are liberally construed.”  (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1038.)  All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.  (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)  Thus, evidence that is equivocal or from which conflicting inferences may be drawn is insufficient to meet the movant’s burden.  (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297.)

This action is based upon an alleged breach of contract.  The elements of a breach of contract claim are: (1) existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) resulting damage to plaintiff.  (See, e.g., Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.)  Here, Plaintiff has presented admissible evidence to establish each of these elements.

 

For the first element, Plaintiff has submitted the fee agreement (Exh. 2 to the Appendix, authenticated in the Dack Decl., at ¶ 4).  The remaining elements are met because Plaintiff also attests it provided services in accordance with the agreement’s terms, Defendant breached by failing to pay Plaintiff for fees and costs incurred on her behalf, and Plaintiff has thus been damaged in the amount of $28,533.76 in unpaid attorney fees and costs, plus interest in the amount of $8,108.68. (UMF Nos. 1-17; Dack Decl., ¶¶ 2-18, and App. Exhs. 1-3.) Plaintiff has thus met its initial burden on summary judgment.  The burden thus shifts to Defendant to show by admissible evidence that a triable issue of material fact exists as to the claim or defense thereto. (Code Civ. Proc., § 437c(p)(1).)  Here, however, she has failed to meet that burden, as she has not filed any Opposition whatsoever to this motion. 

 

Plaintiff is thus entitled to judgment on its breach of contract claim.   The other causes of action stated (for Account Stated, Open Book Account, and Reasonable Value of Services Rendered) are all based on the same factual claims and seek the same relief.  Summary judgment is granted in favor of Plaintiff, and the request for summary adjudication of issues is deemed moot.

 

7

Gemmell    v.   Madden

Petition to Confirm Arbitration Award

 

Ruling:  Off Calendar – no hearing will be held.    Motion to Vacate Default was DENIED without prejudice, 4-8-14. 

 

8

Harmon    v.   Wells Fargo Bank, N.A.

OSC re Preliminary Injunction

 

Notice of Removal filed by defendant, 4/14/2014.

 

9

Jimenez    v.   G & N Rubicon Gear, Inc.

(1) Demurrer to Complaint (2) CMC

 

Tentative Ruling:  (1) Demurrer to Complaint: SUSTAINED, as to the Fifth and Sixth COAs, without leave to amend. The Demurrer to the Fifth COA for Retaliation is SUSTAINED, as Plaintiff failed to allege an “opposition” or “complaint,” as required by Government Code section 12940(h). Significantly, the dialogue referenced by Plaintiff and included within ¶14 of the Complaint does not demonstrate Plaintiff opposed discrimination; rather, the Complaint merely alleges Plaintiff communicated to Defendant that the alleged discriminatory factor did not apply.

 

Additionally, the Demurrer to the Sixth COA for Intentional Infliction of Emotional Distress is SUSTAINED, as the claim arises solely from Defendant’s alleged discriminatory termination of Plaintiff and, pursuant to Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, “personnel management activity,” even when motivated by discrimination, is insufficiently “outrageous” to support liability under this theory. (Id. at 80).  

 

Leave to amend is denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436).  As the above facts are undisputed and the nature of Plaintiff’s claims are clear, but no liability attaches, leave to amend is DENIED.

 

 

Fifth COA (Retaliation):  “To establish a prima facie case of retaliation…the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814).

 

Pursuant to Government Code section 12940(h), a person has engaged in “protected activity” when they have “opposed any practices forbidden under this part” or “filed a complaint, testified, or assisted in any proceeding under this part.” (Govt.  Code, §12940(h)).  In this instance, Plaintiff’s Complaint alleges: “Defendants violated [section 12940(h)] in that a substantial motivating factor for such adverse employment actions was to discriminate against Plaintiff based on his disability.” (¶48 of Complaint.)

 

This allegation fails to allege an “opposition” to a forbidden practice or a “complaint,” as required.  Additionally, rather than alleging retaliation the allegation demonstrates, only, an intent to discriminate.

 

In an attempt to save his claim, however, Plaintiff’s Opposition references the following dialogue, alleged within ¶14:


 “When Mr. Cookson returned, he told Plaintiff, ‘My only concern is that now you’ve become a workers’ compensation liability.’ Plaintiff replied, ‘I don’t see how I could be a workers’ compensation liability since my injury occurred outside work and is well documented that it is already existing.’”  (Emphasis added.)

 

Significantly, while this dialogue may demonstrate an intent to discriminate, Plaintiff’s response thereto (indicating he would not pose a threat of workers’ compensation liability) cannot fairly be interpreted as an “opposition” or “complaint.”

 

Plaintiff did not communicate to Defendant, a belief that terminating his employment due to the threat of workers’ compensation liability would violate FEHA; rather, Plaintiff merely indicated he posed no such threat.

 

Thus, as Plaintiff does not allege a “protected activity,” under section 12940(h) and the Opposition fails to demonstrate any further basis, upon which the claim can be amended, the Court SUSTAINS the Demurrer to the Fifth COA, without leave to amend.

 

Leave to amend is denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.)

 

Sixth COA (IIED):  The elements of a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the Defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering and; (4) actual and proximate causation of the emotional distress. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.)

 

Pursuant to Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.”  (Id. at 80.)  “A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Id., emphasis added.)  “If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Id.).

 

Here a review of the Complaint fails to reveal any allegations of “outrageous conduct,” beyond Defendant’s alleged discriminatory termination of Plaintiff.  As the decision to terminate an employee qualifies as “personnel management activity,” Plaintiff’s claim for Intentional Infliction of Emotional Distress fails under Jankens.

 

Additionally, as the Opposition apparently concedes that this is the sole basis of Plaintiff’s claim and fails to indicate any ability to amend, the Demurrer to the Sixth COA is SUSTAINED, without leave to amend. (See Opposition: 7:9-12: “Any employer would have been able to foresee that terminating an employee would cause that employee serious problems…”).

 

As cited above, pursuant to Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, leave to amend should be denied where the nature of the claim is clear, but no liability exists under substantive law. (Id. at 436.)  As to the additional Arguments raised by Defendant: Given the above analysis, the Court need not review Defendant’s alternative arguments; however, pursuant to Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, the Court notes Plaintiff’s claim for IIED would not be preempted by workers’ compensation law, as the claim arises from allegations of discrimination and “work-related injury discrimination is not a normal risk of the compensation bargain.” (Id. at 1492.)  Thus, the Court in Fretland concluded “emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work-related injury discrimination.” (Id.)

 

Additionally, while Defendant correctly argues Plaintiff is required to allege the “nature, extent or duration” of his emotional distress (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227), this defect could have been cured through amendment.   Thus, but for Jankens, the Demurrer would merely be sustained with leave to amend.

 

10

Powderly    v.   GMAC Mortgage, LLC

(1) Demurrer to Second Amended Complaint (SAC) (2) CMC/Bankruptcy Removal Hearing

 

Tentative Ruling:  Demurrer to SAC:  The Demurrer filed by Defendants Mortgage Electronic Registration Systems, Inc. (“MERS”) and Defendant Ocwen Loan Servicing, LLC is SUSTAINED, in its entirety, without leave to amend.   Additionally, Defendants' RFJN is GRANTED.

 

The Court notes each of Plaintiffs’ claims fails, for the following reasons:

 

First COA (Violation of TILA):  Plaintiffs’ claim fails as: (1) No clear allegations could be located within the SAC, demonstrating Ocwen and MERs participated in the “credit transaction,” which is the focus of this claim; (2) There are no allegations demonstrating MERs and Ocwen qualify as “creditors” under 15 U.S.C. §1602(g), such that they are liable under 15 U.S.C. §1638; and (3) The SAC concedes the “consumer credit transaction” was entered into on May 22, 2008 (¶28 of SAC), more than 3-years prior to the initiation of this suit in June of 2012. Thus, the claim is barred by the applicable statute of limitations. (15 U.S.C. §1640(e) and 15 U.S.C. §1635(f)).

 

Second and Fourth COAs (Fraud):  Plaintiffs’ claims for fraud fail against moving Defendants for lack of specificity.  (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157 and  Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)   Plaintiffs provide no specific allegations demonstrating the alleged fraud committed by moving Defendants.

 

Third and Fifth COAs (Constructive Fraud and Breach of Fiduciary Duty):  Plaintiffs’ Third and Fifth COAs fail for lack of a fiduciary duty. (Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 466 and Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1093).  Plaintiffs fail to identify allegations which demonstrate “special circumstances” sufficient to establish a fiduciary duty.  Moreover, while ¶71 references a duty held by Defendants “[a]s an Insurance or real estate broker/ brokerage,” Plaintiffs provide no allegations demonstrating MERs or Ocwen acted in these capacities.

 

Sixth COA (Unfair Competition):  Plaintiffs fail to state their claim against moving Defendants, with “reasonable particularity.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619).  A review of the Complaint reveals vague allegations that “Defendant GMAC Mortgage, LLC through its subsidiary RFS, Ally Bank, ‘MERS’ and Homecoming Financial, LLC; made false promises; and deceitfully withheld the true terms of what was being given.” (¶78 of SAC.)  The Complaint further alleges these Defendants violated section 17200 by “failing to qualify Plaintiff’s (sic) for a loan modification or loan workout solution.” (Id.)  Plaintiffs provide no authority demonstrating Defendants were required to provide a modification.

 

Similarly vague allegations are asserted against Ocwen, as Plaintiffs allege Ocwen (among many Defendants) “made false statements to trick Plaintiffs into signing away their interest in their property” and “created and forged false documents.” (¶83 of SAC.)

 

Based on the above, Plaintiffs appear to rely on a theory Defendants’ conduct was “fraudulent,” under section 17200.   As these allegations lack the required particularity and as Plaintiffs fail to explain how this conduct was likely to deceive members of the public, the Demurrer is SUSTAINED.  (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal. App. 4th 638, 645.)

 

Seventh COA (Quiet Title):  Defendants correctly demur for lack of payment of the debt: A trustor cannot “quiet title without discharging his debt.  The cloud upon his title persists until the debt is paid.” (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477.)  As there are no allegations demonstrating Plaintiffs paid the debt owing on the property, represented by the Deed of Trust (RFJN Exhibit “1”), Plaintiffs’ claim fails.

 

Eighth COA (Declaratory Relief):  Plaintiffs fail to identify an actual controversy, relating to moving Defendants; rather, Plaintiffs’ claim for Declaratory Relief appears to seek adjudication of Plaintiffs’ TILA claims, which have been inadequately stated against these parties.   Based on the above, the Court finds that declaratory relief is not necessary or proper at this time. (California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623-1624.)

 

Ninth COA (Injunctive Relief):  Injunctive relief is a remedy and not a cause of action. (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.)

 

Finally, leave to amend is DENIED.  The 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.)  As this is Plaintiffs’ third attempt to state adequate claims against Defendants, and they have failed to demonstrate any manner in which their claims can be saved through amendment, leave is DENIED.

 

11

Silver State Coach, Inc.    v.   Go to Bus, Inc.

(1) Demurrer to First Amended Cross-Complaint (FAXC) (2) Motion to Strike Portions of FAXC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) The Demurrer filed by Plaintiff/Cross-Defendant Silver State Coach, Inc.  to the FAXC is SUSTAINED as to all COAs, with 15 days leave to amend.

 

The FAXC does not specify how the named individuals are allegedly personally liable for any stated claims, and is thus uncertain as to them, in its entirety.   The 1st COA fails to state whether the contract alleged was oral or written, who the parties to the contract were, or its material terms.  The 2nd COA thus also fails, as the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. (See e.g. Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.)   The 3rd and 4th COAs are not pled with adequate specificity.  The 5th COA fails to state the basis for the claim that the cross-defendants, and each of them, had a fiduciary duty to FNI, or how such duty was allegedly breached. The 6th COA is identified as an action for an accounting but then pleads that it is as to “an open book account,” without stating the factual context for either claim. 

 

(2) The Motion to Strike is MOOT in light of the above.  However, the Court notes the Motion appears well-taken as to the allegations seeking attorney fees and punitive damages. 

 

Moving party is to give notice.

 

12

Skilled Healthcare, LLC    v.   Dharma Construction Services, Inc.

Motion to Compel Answers to Special Irogs

 

Ruling:  Off Calendar – no hearing will be held.   Motion is MOOT as responses have been served. Sanctions are awarded against Paul L. Gumina in the amount of $470 to be paid within 20 days. RP is to give notice.

   

 

 

This Motion is moot, as responses have been served.  (Declaration of Gumina, Exh. A.)  The only remaining issue is sanctions.

 

Sanctions are warranted.  Per Code of Civil Procedure section 2030.290 (c), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

 

Here, RP failed to provide responses, even after an extension was unilaterally provided.  RP does not dispute this.  However, the requested amount of $1,292.50 does appear excessive given the basic nature of a straight motion to compel.   The Court will award 2 hours total attorney time at $235 an hour for a total of $470.  Because it appears the failure to provide timely discovery responses was due to defense counsel’s misfiling, and not due to anything Defendant Dharma did or did not do, the Court awards sanctions against defense counsel only.   

 

13

Tag Trends, Inc.    v.   La Jolla Group, Inc.

(1) Motion for Order to Stay Proceedings (2) Demurrer to Amended Complaint

 

Ruling:  (1-2) Off Calendar – no hearing will be held.   (1) Motion to Stay this action pending the resolution of Chan v. Haroutoonian (2012-00582125) is GRANTED.  A stay will promote judicial economy as both actions involve a determination of whether Chan engaged in breaches of fiduciary duties. (Code Civ. Proc., 128(a)(3).)  (2) Off Calendar given ruling on No. 1. 

  

 

 

Pursuant to Code of Civil Procedure section 128, (a) Every court shall have the power to do all of the following:  (3) To provide for the orderly conduct of proceedings before it, or its officers.

 

The Court is well aware of the contentious litigation in Chan v. Haroutoonian since it was filed on 7-9-12. There have been numerous law and motion hearings and, a discovery referee was appointed.  At issue in the SAXC filed by tagTrends and Hart are Chan’s alleged breaches of fiduciary duty.  Then, a year after that action was filed, tagTrends, Inc and tagTrends Asia Ltd filed this lawsuit on 9-13-13 against certain clients for “aiding and abetting” Chan in breaching his fiduciary duty owed to Plaintiffs herein.  The gravamen of both cases, really, is “who has the right to the tagTrends name and clients”.

 

Trial in Chan v. Haroutoonian is set for 7-14-14, just 3 months away.  MP makes a generic argument that there are common issues of fact and law in both cases. However, it does appear there is some overlap in the two cases, and staying this action may promote efficiency and even encourage a settlement.

Again, in Chan v. Haroutoonian the SAXC alleges breach of fiduciary duty by Chan. In this action tagTrends alleges La Jolla Group and Guess, Inc. aided and abetted Chan in breaching his fiduciary duties.

 

‘Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person ... knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act....’ [Citations.]” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325, 58 Cal.Rptr.2d 308.) This is consistent with Restatement Second of Torts, which recognizes a cause of action for aiding and abetting in a civil action when it provides: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he [¶] ... [¶] (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself....” (Rest.2d Torts, § 876, subd. (b).) “Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance.... It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act.” (Rest.2d Torts, § 876, com. d, p. 317.) (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 93.)

 

 

 

Here, although neither party specifically makes this argument, it appears an initial determination in both actions would be whether Chan’s conduct was, in fact, a breach of his fiduciary duties to tagTrends, Inc.  If one can be independently liable for aiding and abetting certain activity even though that activity is not found to be tortious, then Plaintiff needs to show that authority.

 

14

Walker    v.   Wells Fargo Home Mortgage

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

 

Tentative Ruling:  (1) The Demurrer by Defendant Wells Fargo is SUSTAINED without leave to amend as to the First COA for violation of Civil Code section 2923.6, and SUSTAINED with 20 days leave to amend as to the Second, Third and Fourth COAs for negligence, violation of Business and Professions Code section 17200, and Accounting. 

 

Plaintiffs’ allegations that Defendant, Wells Fargo, did not meaningfully consider, and improperly denied their loan modification application (and denied their appeal) fail to constitute a cause of action for violation of the Homeowners Bill of Rights (the “HBOR”).  In Paragraph 74 of their Complaint, Plaintiffs unequivocally acknowledge Defendant has not initiated foreclosure activity on their property but that Plaintiffs filed the action because of their belief that “Defendants will soon proceed with foreclosure activity against the Subject Property.”  The HBOR governs a lender’s conduct as part of the nonjudicial foreclosure process.  The particular section of HBOR on which Plaintiffs rely, section 2923.6, prohibits a lender from recording a Notice of Default unless certain requirements are met, which prevents dual tracking (i.e., recording a NOD while a borrower has an application pending for a loan modification).  Because no NOD has been filed by Defendant, Plaintiffs’ claim that Defendant violated HBOR is not ripe or actionable.  Leave to amend is denied because Plaintiffs cannot plead around their judicial admission that Defendant had not commenced nonjudicial foreclosure proceedings during the pendency of their application.

 

With respect to the negligence claim, Plaintiffs have not identified any authority that Defendant owed any legal duty to meaningfully evaluate and grant their loan modification application outside the nonjudicial foreclosure process.  (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 222, and fn. 9 [Civil Code section 2923.6 does not grant a right to a loan modification. To the contrary, it “merely expresses the hope that lenders will offer loan modifications on certain terms” and “conspicuously does not require lenders to take any action”]; Lueras v. BAC Home Loans Servicing , LP (2013) 221 Cal. App. 4th 49, 63-68 [lender does not have a common law duty of care to offer, consider, or approve a loan modification].)  Because Plaintiffs make vague and conclusory allegations in their Complaint that Defendant made misrepresentations to Plaintiffs regarding their loan modification application, and in disclosures, and Plaintiff suffered damages, leave to amend is granted as to allege a potential negligent misrepresentation claim.     

 

As to the third cause of action for violation of Business and Professions Code section 17200, Plaintiffs do not allege they suffered injury as a result of any alleged unlawful, unfair or fraudulent business act by Defendant.  Plaintiffs cannot base the claim on a violation of Civil Code section 2923.6.  As to the allegations  Defendant upcharged default-related fees, and failed to disclose the alleged upcharging, Plaintiffs’ allegations are too generic and vague, and Plaintiffs do not allege specific facts showing  Defendant improperly charged these fees to Plaintiffs.  The allegations are even more confusing as Plaintiffs also alleged there has been no foreclosure activity against them, so it is unclear to what default related expenses Plaintiffs are referring.  

 

Plaintiffs acknowledge their Accounting claim stands or falls based on the validity of the other causes of action, none of which survive demurrer. 

 

Defendants’ RFJN, which is unopposed, is granted only as to the existence of the documents (which are irrelevant to the determination of the motions).

 

(2) The Motion to Strike is granted.  Plaintiffs’ fail to allege facts showing Defendant malice, fraud or oppression committed by an “officer, director or managing agent” of Defendant, or authorization of alleged wrongful conduct.  Punitive damages are not recoverable for a claim of negligence, including negligent misrepresentation.  (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1241.)

 

Moving Party is to give notice.