TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. Do not call the department to verify if you should appear or not. Please read below for the information.  If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

 

May 31, 2016

2:00 P.M.

 

#

Case Name

Tentative

 

 

 

1

Conner vs Orange Coast Memorial

Motion to Vacate/Set Aside Dismissal

 

Ruling:  Off Calendar – no hearing will be held.  The Court continues this motion to 7-5-16, Dept. C13, at 2 pm, and invites further briefing on Huens v. Tatum (1997) 52 Cal.App.4th 259.  Huens stands for the proposition that plaintiff cannot rely on counsel’s mea culpa affidavit (Code Civ. Proc., §473(b)) to set aside a voluntary dismissal pursuant to a settlement agreement. That provision does not apply to voluntary dismissals.  If relief is to be obtained, plaintiff must present evidence of actual “mistake, surprise or excusable neglect.” (Huens v. Tatum, supra, 52 Cal.App.4th at 264-265, disapproved on other grounds in Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249.)

 

Specifically, in Heuns, an individual brought an action for personal injuries arising from an automobile accident, and after a settlement was reached, filed a voluntary dismissal of defendants with prejudice. Shortly after the settlement was executed and defendants were dismissed, plaintiff's attorney discovered that he had miscalculated the amount of insurance that was available. The trial court denied plaintiff's Code of Civil Procedure section 473, motion to vacate the dismissal made on the ground of counsel's mistake, and the appellate court affirmed.

 

Supplemental briefs, limited to a maximum of 10 pages, are to be served and filed no later than

6-20-16, 4 pm.

2

EBS General Engineering vs C.C. Myers

Motion for Leave to File Second Amended Complaint (SAC)

 

Ruling:  Off Calendar – no hearing will be held.  Plaintiff EBS General Engineering, Inc.’s unopposed Motion for Leave to File a SAC is GRANTED.

 

California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) 

 

Plaintiff is to separately file and serve the SAC within 5 court days.

 

Prevailing party is to give notice.

 

3

Engelbrecht vs Vaughan

Motion for Summary Judgment and/or SAI

 

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

 

4

Future DB International vs City of Irvine

Petition for Writ

 

Ruling:  Off Calendar – no hearing will be held.  It appears to the Court that in making its decision that Petitioner’s bid was non-responsive, Respondent abused its discretion. Here, Item 9 asked Petitioner to list projects of similar nature that the firm has completed within the last 5 years. Petitioner indicated “N/A”, a response which all parties know to mean “not applicable.”  Indeed, the Aljazzar Declaration, at ¶8 states: “8. As a licensed contractor, having worked in the industry, and having prepared over 150 bids, I am readily familiar with the industry custom and practice by which bids are prepared. It is industry custom and practice to use the term “N/A” in bid proposals to indicate “not applicable.” Nothing about this response requires any outside investigation. It is clear that the call of the question, how many projects in the last 5 years, simply does not apply to this Petitioner. Respondent cites to no legal authority wherein the use of the abbreviation “N/A” has been deemed literally non-responsive. Also, if a bidder indicates prior experience is inapplicable, nothing about that would give it an advantage over a bidder who listed out its projects. In fact, the term “N/A” could only put it as a disadvantage. The D.H Williams factors support the conclusion that The City rejected the Petitioner’s bid based on its belief Petitioner was not responsible as opposed to its claim of non-responsiveness.

 

OBJECTIONS:

 

Petitioner Future DB filed objections to the Declaration of Shohreh Dupuis:

1.    Sustain

2.    Sustain

3.    Sustain

4.    Sustain

5.    Sustain

 

RFJN: granted

 

The Court will continue this matter to 7-12-16, Dept. C13, at 2 pm for further briefing on the issue of whether the Court must first order The City to conduct a responsible bidder hearing, or whether the Court is free to determine bid preparation costs at this time.  Supplemental briefs are to be served and filed by 6-27-16, 4 pm, maximum 10 pages. 

 

5

General Electric Capital vs Promedia

(1) Motion for Leave to File Amended Complaint (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  Plaintiff’s unopposed motion for leave to amend the complaint is granted.  Plaintiff is granted leave to file and serve the First Amended Complaint in the form attached as Exhibit “B” to the Franco Declaration within five court days.

 

(2) CMC is continued to 7-26-16, Dept. C13, at 8:45 am. 

 

Plaintiff is to give notice.

 

6

Ho vs Landsafe Appraisal

Motion for Sanctions

 

Tentative Ruling:  Third Party Bank of America’s Motion for Sanctions is granted pursuant to Code of Civil Procedure section 2023.030 for Plaintiff’s failure to meet and confer prior to filing the Motion to Compel Compliance with Deposition pursuant to Code of Civil Procedure section 2025.450. Sanctions in the amount of $1400 to be paid within 30 days.

 

MP is to give notice.

 

Plaintiff filed a Motion to Compel Compliance with a Deposition Subpoena on 10-9-15 and withdrew that motion on 1-11-16, prior to the 1-19-16 hearing date. The problem is, apparently, that the Motion was withdrawn after Defendant filed an opposition on 12-22-15—and hence, Defendant has filed this motion to recoup its fees.

 

Plaintiff filed his Motion to Compel Compliance pursuant to Code of Civil Procedure section 2025.450, which specifically requires a meet and confer.  (Code Civ. Proc., §2025.450(b)(2).)  But obviously no meet and confer effort could have occurred because Plaintiff admits the responses were not due until 10-9-15, and Plaintiff filed the motion on that same date.  And, although Plaintiff eventually did withdraw the motion, it did so five days before the hearing and after the time opposition was due. Had Plaintiff simply picked up the phone and met and conferred when he received the 10-9-15 responses, the motion to compel may have been avoided. Accordingly, sanctions are awarded pursuant to Code of Civil Procedure section 2023.020, but reduced.  The Declaration of Aaron R. Marienthal seeks sanctions for 4 hours for the opposition to the Motion to Compel at $505 an hour.  But Marienthal provides no information to support the claimed rate of $505 an hour. Accordingly, the Court will reduce the hourly rate to $350 x 4 hours =$1400.

 

7

Mood vs County of Orange

Motion to Amend Judgment

 

Tentative Ruling:   Motion to Amend Judgment brought by Petitioner is DENIED.

 

“While a court has power to correct mistakes in its records and proceedings, and to set aside judgments and orders inadvertently made, which are not actually the result of the exercise of judgment, it has no power, having once made its decision after regular submission, to set aside or amend for judicial error.” (Stevens v. Superior Court in and for San Joaquin County (1936) 7 Cal.2d 110, 112.)

 

Here, Petitioner’s Motion appears to assert judicial error as the basis for seeking an Amendment to the Judgment.  Notably, Petitioner does not identify a clerical error, which would permit amendment pursuant to Code of Civil Procedure section 473(d).

 

Thus, the Motion, as brought under Code of Civil Procedure section 473, must be DENIED.

 

Additionally, the only exceptions to the rule articulated in Stevens, is a Motion to Vacate Judgment, properly brought under Code of Civil Procedure section 663 or a Motion for New Trial brought under Code of Civil Procedure section 657; however, Petitioner previously filed such Motions, under these provisions, and the same were DENIED on April 5, 2016 and February 23, 2016.

 

The instant Motion offers no argument or evidence, which would support an alternative ruling.

 

Moreover, while Petitioner cites Code of Civil Procedure section 657 within the instant Motion, suggesting an intent to bring a second Motion for New Trial, any power to rule on the same has expired.  (See Code Civ. Proc., §660.)

 

8

Nautilus Healthcare vs Horng Medical

Motion to Strike Portions of Complaint

 

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

 

9

Praetorian Insurance vs PSMG

Demurrer to Complaint

 

Ruling:  Off Calendar as MOOT – no hearing will be held.

 

10

Pre-Banc Business Credit vs Vanis

(1) Motion to Set Aside/Vacate Default (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Defendants Mark Vanis and Sara Vanis’ unopposed Motion to Vacate the Entry of Default is GRANTED.

 

The motion is timely, was properly served, and is unopposed.  The court finds that there is excusable mistake and/or neglect and grants discretionary relief under Code of Civil Procedure section 473(b). 

 

Defendants are to separately file and serve their Answer attached as Exhibit F to the Declaration of William Halle, Esq. by 6-7-16.

 

(2) CMC is continued to 7-22-16, Dept. C13, at 8:45 am.

 

Prevailing party is to give notice.

 

11

Sanchez vs State of California

Motion to Compel Further Responses to Form Irogs

 

Tentative Ruling: Defendant’s unopposed motion to compel Plaintiff to provide further responses to Form Interrogatory Nos. 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8 and 12.4, is granted

 

Defendant’s request for monetary sanctions is granted against Plaintiff in the reduced amount of $510.00, which the Court finds is the reasonable amount of attorney fees incurred in bringing the motion, which is unopposed.

 

Plaintiff, Anthony Sanchez, is ordered to serve full and complete verified further responses to Form Interrogatory Nos. 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8 and 12.4, within 10 days, and pay the monetary sanctions within 30 days.

 

Defendant is to give notice.

 

12

Signal Restoration vs Williams

Motion for Attorney Fees

 

Ruling:  Off Calendar – no hearing will be held.  Plaintiff’s unopposed motion for attorney fees is denied without prejudice.  The evidence submitted with the motion is insufficient to establish that the “Standard Residential Project Terms and Conditions” (the “Terms and Conditions”) which contains the attorney fees provision, was part of the Residential Home Improvement Agreement and Work Authorization (the “Agreement”) signed and agreed to by the parties. (See Exh. “A” to the Ennen Declaration.)  The Terms and Conditions are not signed by the parties, and the Agreement states at the bottom that “[t]he terms and set forth at www.signalrestoration.com, or in print upon request, are incorporated into this Agreement by reference and constitutes as part of the Agreement between the parties.”  There is no evidence the Terms and Conditions attached to the Agreement were part of the Agreement, and no legal authority cited in support of the motion that terms and conditions that are separate and not attached to an agreement are enforceable.

 

Plaintiff is to give notice.

 

13

 

Thomas Gallaway vs Call & Jensen

(1) Motion to Compel Deposition (Oral or Written) (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1-2) Motion to Compel Further Deposition Testimony brought by Defendants Call & Jensen and David Sugden and the CMC are CONTINUED to June 28, 2016, Dept. C13, at 2 pm.   The Court finds an inadequate attempt to meet and confer and, consequently, orders Counsel Martin Deniston and Ray Ryan to further meet and confer, in person, as to each question which forms the basis of this Motion.

 

The parties are ordered to file a Joint Statement, no later than June 15, 2016, which indicates what, if any, issues remain and the source of the dispute.  The statement shall identify the position of each party, as to each question remaining at issue.

 

Counsel is advised that, to meet the requirements of the Discovery Act, “[t]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions.” (Townsend v. Superior Court (2008) 61 Cal.App.4th 1431, 1435.)

 

“Only after all cards have been laid on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a ‘sincere effort to resolve the matter.’” (Id.)