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.

 

July 5, 2016

2:00 P.M.

 

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Case Name

Tentative

 

 

 

1

Ally Bank vs Sandoval

 (1) Application/Request for WOP (2) Application/Request for WOP

 

Tentative Ruling:  Plaintiff Ally Bank’s unopposed Applications for Writ of Possession against Defendants Helena Alicia Sandoval aka Helena A. Sandoval aka Helena Sandoval and Alberto Miranda

for the 2015 Dodge Challenger is GRANTED. 

 

The court orders Defendants to turn over to Plaintiff the 2015 Dodge Challenger located at Defendants’ residence (12302 Lesley St., Garden Grove, CA 92840). 

 

Absent Defendants’ posting of an undertaking, the failure to turn over the vehicle to Plaintiff may subject Defendants to being held in contempt of court.  The court finds that Defendants have no interest of value in the vehicle, and thus, the requirement of Plaintiff to post an undertaking is waived. (Code Civ. Proc., § 515.010(b).)  Should Defendants wish to prevent Plaintiff from obtaining possession of the vehicle, Defendants are required to post an undertaking in the amount of $39,132.41.

 

Moving party is to submit a proposed order (Judicial Council Form CD-120).  Moving party is to give notice.

 

 

2

Conner vs Orange Coast Memorial Medical Center

Motion to Vacate/Set Aside Dismissal

 

Tentative Ruling:  Motion to Vacate Dismissal is denied, without prejudice.  (Code Civ. Proc., §473(b).)  Plaintiffs gave counsel authority to enter the dismissals.  (Plaintiffs’ Declarations ¶2.)  Counsel has provided no authority that the failure to do so in a timely manner after a 998 offer, or to properly accept the 998 offer in the first place, warrants vacating the voluntary dismissal. Furthermore, the delay in bringing the motion is arguably unreasonable. Counsel has known of his error since at least November 2015, but failed to file this motion until March 2016.

 

The Court is inclined to entertain a motion for discretionary relief under Code of Civil Procedure section 473, subdivision (b).  (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249.)

 

RP is to give notice.

 

3

Dack Marasigan, LLP vs Cuellar

Claim of Exemption/Levy 

 

Tentative Ruling:  Claim of exemption is denied. The statutes set forth in the claim of exemption have no application to the “moneys levied from escrow disbursement.”  Judgment Debtor has failed to sustain his burden of proof.  (Code Civ. Proc., §703.580.)

 

Exemptions are creatures of statute. No property is exempt from enforcement unless specifically made so by law; and courts may not increase the statutory exemptions. (Estate of Brown (1899) 123 Cal. 399, 401; Estate of Silverman (1967) 249 Cal.App.2d 180, 183.)  On the other hand, exemption laws are liberally construed in the debtor's favor. (Ford Motor Credit Co. v. Waters (2008) 166 Cal.App.4th Supp. 1, 8; In re Hernandez (9th Cir. BAP 2012) 483 BR 713, 724.)

 

Pursuant to Code of Civil Procedure section 703.580 the claim of exemption and the notice of opposition to the claim constitute the pleadings, and the exemption claimant (here, Judgment Debtor, Thomas Cuellar) has the burden of proof.  Here, it appears the claim is that moneys levied from an escrow disbursement are exempt under Code of Civil Procedure section 704.070,  Financial Code section 17410 and possibly Code of Civil Procedure section 1801 (the Court notes the handwritten claim of exemption is difficult to read). 

Here, Code of Civil Procedure section 704.070 is inapplicable as Judgment Debtor has not established that the money from the escrow disbursement involves any “paid earnings”.

 

Financial Code section 17410 is inapplicable as the money judgment does not, apparently, arise out of any claim against the licensee or escrow agent.

As to Code of Civil Procedure section 1801, the Court cannot determine from the papers if there has been any “assignment for the benefit of creditors” and how this statute is applicable for any claimed exemption.

As the statutes set forth in the claim of exemption appear completely inapplicable, the Court is inclined to deny the claim of exemption made by Judgment Debtor. Judgment Debtor has failed to sustain his burden of proof.  (Code Civ. Proc., §703.580.)

4

Doldol vs Bellemeur

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Production

 

Ruling:  (1-2) Off Calendar per MP – no hearing will be held. 

 

5

Lopez vs Oaktree Investments, Inc.

(1) Demurrer to Complaint (2) Motion for SLAPP (3) Motion to Expunge Lis Pendens

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  Notice of Dismissal filed. 

 

6

MDV Properties, LLC vs Hiserodt

(1) Demurrer to Cross- Complaint (2) Demurrer to Cross- Complaint (3) Demurrer to Cross- Complaint (4) CMC

 

Ruling:  (1-3) Off Calendar – no hearing will be held.  The Court SUSTAINS the unopposed Demurrers filed by Cross-Defendants Hen P. Troung, United Reference Laboratory, Lynda V. Nguyen and Bich Hong Vo.

 

The Court construes Cross-Complainant’s failure to oppose the Demurrers as an abandonment of his claims or an admission the Demurrers have merit.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

 

Cross-Complainant is to file any amended Cross-Complaint within 15 days service of notice of this order.  

 

(4) CMC is continued to 8-24-16, Dept. C13, at 8:45 am. 

Moving Cross-Defendants to serve notice of this order.

7

Rechinda vs Public Motors So Cal

Motion to be Relieved as Counsel of Record

 

Ruling:  Off Calendar – no hearing will be held.  James S. Sifer's and Madison Harbor, ALC's unopposed Motion to be Relieved as Counsel of Record for Defendant Juno Equipment Rentlas, Inc. dba Public Motors So Cal erroneously sued as Public Motors So Cal is GRANTED as follows.

The Motion is unopposed, service is proper, and moving attorney has stated there is a basis for permissive withdrawal under Rules of Professional Conduct, Rule 3-700.  This shall become effective upon filing of proof of service of this Order on Defendant.

Moving attorney is to give notice. 

 

8

Western Surety Company vs Medrano

(1) Motion for Restraining Order (2) Motion to Deposit Bond Funds with Court (3) Motion for Attorney Fees

 

Ruling:  (1-3) Off Calendar – no hearing will be held. 

 

(1) Plaintiff Western Surety Company’s unopposed Motion for Restraining Order is MOOT in light of the June 28, 2016 Minute Order. 

 

Moving Party is to give notice.

 

(2) Plaintiff Western Surety Company’s unopposed Motion to be Discharged Pursuant to Code of Civil Procedure section 386.5 is CONTINUED to 8-9-16, Dept. C13, at 2 pm.

 

There is a servicing defect with respect to Defendant Ava Monroze.  This motion was served on her purported attorney of record on 3-24-16 by mail.   It is questionable whether serving her purported attorney by mail is appropriate because Ms. Monroze has not yet appeared in this action.  Because Ms. Monroze has not yet appeared in this action, the court will require the moving papers to be served in the same way she was served with the Summons and Complaint.  The hearing on this motion is CONTINUED to 8-9-16.  Plaintiff is to properly file a Proof of Service on Defendant Ava Monroze by 7-8-16.

 

In addition, the motion must be accompanied by an affidavit which states, in part, that Plaintiff has “no interest in the amount or any portion thereof….” (Code Civ. Proc., § 386.5.)  Although the Points and Authorities submitted with the moving papers indicate Plaintiff claims no interest in the funds other than the request for attorney fees and costs pursuant to Code of Civil Procedure section 386.6, this statement should be included in a Declaration.  Plaintiff is to file a supplemental declaration (and proofs of service) curing this defect by 7-8-16.  As discussed above, the court notes Ms. Monroze must be served in the same manner as the Summons and Complaint. 

 

Moving Party is to give notice of the continuance, and file a proof of service reflecting the same, by

7-8-16.

 

(3) Motion for Attorney Fees is continued to 8-9-16, Dept. C13, at 2 pm.

 

Moving Party is to give notice of the continuance, and file a proof of service reflecting the same, by

7-8-16.

 

9

Yuko Tsuchida vs Does

(1) Motion for Leave to Conduct Third Party Discovery (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) The Proof of Service (POS) here is insufficient. First, the POS indicates the motion was served on “the interested parties in this action,” but fails to indicate in the POS who the interested parties are (the Court notes no defendants have been named). So, it is unclear whether Time Warner (the witness) has even been served with this motion. Time Warner, although not a party to the lawsuit, should be given the opportunity to weigh in on this issue. Next, the motion was served electronically, but MP failed to list the electronic address of the unknown “interested parties.” So it is unclear from the POS to whom, and to where, the Motion was served. This is in violation of CRC 2.306(h).

 

Accordingly, the motion is denied without prejudice for lack of POS.

 

(2) CMC is continued to 8-24-16, Dept. C13, at 8:45 am.

 

MP is to give notice. 

 


 

10

Vizinho vs Servicon Systems

 

Motion for Discovery

 

Tentative Ruling:  Motion for Relief from Late Expert Designation is granted.  Given all the documents filed herein, it appears counsel for Boeing failed to timely submit the designation based on “surprise” which was created, at least in part, by the undisclosed settlement of Plaintiff and Defendants.  Unfortunately, an inordinate amount of discord between counsel has resulted in more work for both sides, and this Court.   The Court encourages the parties to work together to make the experts available immediately for deposition.

 

 

MP is to give notice. 

 

It appears now that although AlliedBarton has completely opposed the designation of retained medical expert, Dr. Landon, it has (just in case) served a supplemental designation of two retained medical experts (who, were designated, de-designated, and designated again). This conduct has resulted in needless work for the Court.  Put another way, how difficult would it have been to say “you can designate Dr. Landon and then we will designate Drs. Kvitne and Hsu”?

 

 All in all, because Boeing established that it was “surprised” by the secret settlement, and when it learned of it, learned it was now in the lead in terms of proving up Plaintiff’s claims, this excuse justifies allowing the untimely designation.