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: 07/28/15

 

 

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

Anaheim Arena vs Certain Underwriters at Lloyd’s

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

 

Tentative Ruling:  (1) The Demurrer by Defendant, Professional Liability Insurance Services, Inc. (“PLIS”) to the Amended Complaint is overruled.  (2) The unopposed Motion to Strike punitive damages is denied (the motion is moot as to the Fourth Cause of Action).  PLIS’s unopposed RFJN is granted.

 

PLIS is to answer the Amended Complaint within 10 days.

 

(1) Following the filing of the demurrer and motion to strike, Plaintiff voluntarily dismissed the Fourth Cause of Action, making the motions moot. 

 

The first, second and third COAs all arise from an alleged breach of the duty to defend under an insurance policy attached to the Amended Complaint.  (Plaintiff’s original complaint did not attach the policy, and Plaintiff’s original allegations were conclusory as to the basis for holding PLIS liable as an insurer under the policy.)

 

In the Amended Complaint, Plaintiff alleges PLIS brokered/sold the policy to Plaintiff, created, drafted, marketed and financed the policy, was the underwriter of the policy, and that PLIS will pay all or a portion of the amounts due to Plaintiff under the policy. (Amended Complaint, ¶¶ 4-6.)    PLIS argues that these allegations are contrary to the actual language of the policy (Exhibit A), and that it is clear that the Lloyd’s underwriters are the insurer.

 

To the contrary, it is not at all clear from the face of the policy what role PLIS played as to the issuance of the policy, and whether or PLIS is just the broker or an insurer.  First, the policy does not define or clearly identify the “insurers” or the “underwriters,” even though it does define the “insured” (Plaintiff).  PLIS is named as the issuer of the policy on the first page, and PLIS is identified in Section 10 of the Declarations as the “Appointed Representatives” where notices, including claims, must be given.  The policy provides, in two places, that the various Lloyd’s Defendants are syndicates under the policy, and that the policy is “effected with” certain underwriters at Lloyd’s. The phrase “effected with” is not defined anywhere in the policy. The policy states that it “constitutes the entire agreement between the Insured(s) and Underwriters relating to this policy,” indicating that the (unidentified) underwriters are parties.  PLIS’s email address on the cover page of the policy is underwriter@plisinc.com, adding more potential confusion and uncertainty as to its role. 

 

PLIS has failed to establish, at this stage of the litigation and as a matter of law based on the policy and pleading, that PLIS cannot be held liable in any capacity under the policy. 

 

(2) As to the Motion to Strike punitive damages, even though Plaintiff did not file a separate opposition to that motion, the Amended Complaint sufficiently alleges facts relating to alleged bad faith denial of coverage that, if true, may justify an award of punitive damages and the basis for the request can and should be explored in discovery. 

 

Moving Party is to give notice.

 

2

Batistic vs City of Placentia

Motion for Summary Judgment and/or SAI  

 

Ruling: Off Calendar – no hearing will be held.  Case dismissed.

 

3

Catanzarite Law Corp. vs Sanchez

Motion to Compel Deposition (Oral or Written)  

 

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

 

4

Coleman vs Bangert

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

 

Tentative Ruling: (1)  As to the Defendant John Bangert, Francine Bangert, and Handy Child Solutions LLC’s Demurrer and Motion to Strike, the Court rules as follows:

 

Demurrer to the 1st COA for Breach of Contract, 2nd COA for Breach of Implied Covenant of Good Faith and Fair Dealing, and 6th COA for Promissory Estoppel is overruled. Defendant argues it unclear who the parties to the actual oral contract are. However, it is clear from the Complaint (¶27, specifically), that “JOHN BANGERT and Plaintiff entered into an oral agreement wherein JOHN BANGERT agreed to transfer to Plaintiff a 49% membership interest in HCS…”. Defendant John Bangert is clearly on notice of the breach of oral contract claim pled against him. Whether this claim is viable, is for the merits. The demurrer to the other two causes of action make the exact same arguments.

 

Demurrer to the 3rd COA for Fraudulent Misrepresentation is sustained with leave to amend. Plaintiff alleges that “On or about January 1,2 014, JOHN BANGERT affirmatively represented to Plaintiff he would transfer Plaintiff a 49% membership interest in HCS in exchange for her agreement to act as Vice President and Chief Operating Officer of HCS.” (Complaint ¶40.)  Plaintiff also pleads at ¶42, “Plaintiff is informed and believes and thereon alleges that JOHN BANGERT knew his representation was false and had no intention to transfer Plaintiff a 49% membership interest in HCS.” What is unclear at this time is whether the interests were legally transferred. The documents attached to the Complaint seem to memorialize the 49% transfer, but it is unclear if they legally transferred the 49% from Francine to Plaintiff, and 1% to John. If the interest was actually transferred, then it would appear there is no misrepresentation because Defendant John did what he said he would do, transfer the interests. If the interests were not actually and legally transferred to Plaintiff, then it would appear there may be a fraudulent misrepresentation cause of action if John held himself out to be in a position to transfer shares he did not have, or have consent to transfer. However, as currently drafted with the exhibits attached, it is unclear.

 

Demurrer to the 4th COA for Negligent Misrepresentation is sustained for the same reason. It is unclear whether Plaintiff is claiming the 49% interest was transferred to her or not. If she is suggesting that no transfer was legally completed b/c Francine Bangert never consented, then she likely can state a COA. However, if she actually has, at this time, a legal 49% interest in the HCS, it is unclear how there is a misrepresentation by John.

 

Demurrer to the 7th COA for Tortious Interference w/ a contract is sustained because it is also contingent upon Plaintiff cleaning up the complaint to show whether or not she actually has the 49% interest in HCS. All in all, and reading between the lines, if Francine’s 50% interest in the LLC was improperly taken from her and without her consent, how can she be liable for inducing a breach of a contract that purportedly took it from her?

 

Demurrer to the 8th COA for Intentional Interference with Prospective Economic Advantage against John Bangert and Francine Bangert is sustained with leave to amend. Here, Plaintiff pleads that she “obtained a 49% membership interest in HCS” (Complaint¶91), and that “The BANGERTS knowingly and intentionally interfered with Plaintiff’s membership interest and relationship with HCS.” Complaint¶94. Now, for the first time, it appears she is in a “relationship” w/ HCS as opposed to an “oral contract” with John. The reality is, however, that according to the exhibits attached to the Complaint and ¶11 of the Complaint, John and Francine were 50-50 owners of HCS up until the purported transfer of interest; whereupon John was still 51% owner/member. Therefore, it is unclear how as member/owners, they could interfere w/ Plaintiff’s relationship w/ HCS.

 

Demurrer to the 9th COA for Conversion is overruled. Plaintiff pleads that she has an ownership interests in a copier, file cabinet, office supplies, etc. and that the Bangerts have wrongfully exercised dominion and control over these.  (Complaint ¶101, 102.) Whether these items are the property of Plaintiff or HCS is a matter for the merits.

 

(2) MOTION TO STRIKE: Defendants seek to strike 17 items from the Complaint. Defendants seek to strike out punitive damages language from the Complaint, which, to the extent the motion is not moot, is granted. There are no facts to warrant punitive damages in this inter-family business dispute.

 

Also, Defendants seek to strike out Plaintiff’s request to return her authority as COO and for a day to day role in HCS’ operations. Defendants argue that the power to select officers is exclusive to the company itself and the Operating Agreement is controlling. Plaintiff argues that Courts may issue an injunction affecting the business and management of a company. Here, however, Plaintiff is seeking more than just injunctive relief, but requesting the Court take power away from the members of the LLC. Without knowing more about the membership interests, the Court grants the motion. Accordingly, to the extent the Motion to Strike is not moot, it is granted.

 

MP to give notice. 20 days leave to amend.

 

(3) Cross-Defendants’ unopposed demurrer to the Cross-Complaint is sustained with 20 days leave to amend. MP is to give notice. (See Herzberg v. County of Plumas (2004) 133 Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of issue].)

 

5

Halvorssen vs Utzinger

Motion to Compel Deposition (Oral or Written)

 

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

 

6

Kim vs Galita

(1) Demurrer to Cross-Complaint (2) Motion for Sanctions (3) CMC  

 

Tentative Ruling:   (1) Cross-Defendant William Kim’s Demurrer to the 1st COA (fraud), 3rd COA (breach of contract), 4th COA (abuse of process), and the 5th COA (civil conspiracy) of the Cross-Complaint is OVERRULED, with 10-days to Answer.

 

Cross-Defendant contends the statute of limitations has run.  The Cross-Complaint is compulsory as to Moving Party Cross-Defendant William Kim.  However, Cross-Complainant correctly contends a cross-complaint relates back to when the action was commenced for statute of limitation purposes.  Therefore, the statute of limitations relates back to the filing of the underlying Complaint on 4-1-11.  The subject commercial lease was entered into on 8-31-10. (See, Cross-Complaint, at ¶ 19.)  Accordingly, Cross-Defendant has failed to establish that the statute of limitations has run as a matter of law.  On its face, the Cross-Complaint does not clearly and affirmatively show the Complaint is time-barred. 

 

Prevailing party is to give notice.

 

(2) Cross-Complainant Josie Galita’s Motion for Sanctions against Cross-Defendant William Kim is DENIED.  Although the demurrer is OVERRULED, the court does not find the demurrer is frivolous or was filed for an improper purpose.  It is within the court’s discretion to issue sanctions under Code of Civil Procedure section 128.7, and the court declines to issue sanctions at this time.

 

Prevailing party is to give notice.

 

7

Mason vs Specialized Loan Servicing

Motion to Consolidate 

 

Ruling: Off Calendar – no hearing will be held.  Motion is off calendar as MOOT. This Court granted the alternative relief of staying the U/D action on 4-13-15. That Order remains in effect pending the outcome of this case.

 

On 4-13-15 this court ordered “a stay on the unlawful detainer action pending the outcome of this case.” (See 4-13-5 Minute Order.) The Court signed the Order on 5-8-15, indicating the same. There is no reason to consolidate the actions since the Court has already provided the alternative relief of staying the U/D action.

 

8

Max Media, Inc. vs Cortislim International

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

 

Ruling: Off Calendar – no hearing will be held. 

 

(1, 2, 3, 5) Charles Perry, Esq. of Law Offices of Charles R. Perry’s unopposed Motions to Withdraw as Counsel of Record for (1) Defendant CortiSlim International, LLC (2) Defendant/Cross-Complainant CortiSlim International, Inc. (3) Defendant/Cross-Complainant Alan Sporn and (5) Defendant National Marketing, Inc. are CONTINUED to 9-1-15, Dept. C13, at 2 pm.

 

First, the service on National Marketing, Inc., CortiSlim International, Inc., and Alan Sporn is 10 court days short of a proper notice period.  In addition, Moving Attorney has failed to serve Plaintiff with the moving papers.

 

Second, the declaration submitted in support of the moving papers fails to sufficiently establish the client’s last known address.  To prove the mailing address is the client's current address, the declaration may state counsel confirmed the address by a recent telephone call to the client. Alternatively, use of registered or certified mail with return receipt requested may confirm the address, provided the client personally signs the return receipt. Any such confirmation should be within the preceding 30 days. 

Further, the proposed order fails to include the client’s current telephone number.  In addition, the proposed order includes two separate addresses as the client’s current address; it is unclear which address is the client’s current address.

 

The court order the moving papers, supplemental declaration, supplemental proposed order, and notice of the continuance to be properly filed and served by 7-31-15.

 

(4) Charles Perry, Esq. of Law Offices of Charles R. Perry’s unopposed Motion to Withdraw as Counsel of Record for Defendant John Neubauer is CONTINUED to 9-1-15, Dept. C13, at 2 pm.

 

First, service is defective because Moving Attorney has failed to serve the moving papers on Plaintiff.

 

Second, the declaration submitted in support of the moving papers fails to sufficiently establish the client’s last known address.  To prove the mailing address is the client's current address, the declaration may state counsel confirmed the address by a recent telephone call to the client. Alternatively, use of registered or certified mail with return receipt requested may confirm the address, provided the client personally signs the return receipt. Any such confirmation should be within the preceding 30 days. 

 

The court order the moving papers, supplemental declaration, and notice of the continuance to be properly filed and served by 7-31-15.

 

(6) CMC is Continued to 9-1-15, Dept. C13, at 2 pm.   MP is to give notice.

 

9

Rocha vs Brower

(1) Motion to Strike Portions of Complaint (2) CMC

 

Ruling: (1-2) Off Calendar as MOOT – no hearing will be held.  First Amended Complaint has been filed.  CMC continued to 9-8-15, Dept., C13, at 2 pm.

 

10

Simental vs Rezai & Associates

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

 

Tentative Ruling: (1) Defendants’, Fari Rezai and Rezai & Associates, unopposed RFJN is GRANTED.  Defendants’, Fari Rezai and Rezai & Associates, Demurrer to the Complaint is OVERRULED. 

 

Does the SOL bar the Complaint as a matter of law?  No.  The issue here is whether the facts alleged in Simental’s Complaint establish constructive knowledge of injury sufficient for the COAs to accrue.

 

For a demurrer based on the bar of the SOL to be sustained, it “must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.”  (Baright v. Willis (1984) 151 Cal.App.3rd 303, 311; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313.)  The SOL is not a an element of the prima facie claim for attorney malpractice, it is a defense.  (Id., at p. 316.)  Thus, the question of when a belated discovery of facts has occurred, especially in malpractice cases, “is essentially a question of fact . . . and only where reasonable minds can draw but one conclusion from the evidence that the question becomes one of law.”  (Baright, supra, emphasis in original.)

 

The SOL for a legal malpractice claim is stated in Code of Civil Procedure section 340.6:

 

(a)  An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.

         

The one year statute of limitations period begins when the plaintiff knows or constructively discovers the facts of the wrongful act or omission, but is tolled until plaintiff sustains actual injury.  (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 738, 758.)  Here, as framed by Attorneys, the issue is Simental’s actual or constructive knowledge.   Attorneys argue that from the allegations of the Complaint and a judicially noticeable Order Approving the C&R that Simental signed, he knew the facts of their negligence.  But he alleges he did not because the C&R was written in English.  As a Spanish speaker, an interpreter was provided for him, who did not explain the document’s terms.  (Complaint, ¶7d.)  Attorneys say Simental had “notice or information of circumstances to put a reasonable person on inquiry, or [had] the opportunity to obtain knowledge from sources open to his investigation . . . ,” which began the SOL.  (Sanchez v. South Hoover Hospital (1976) 18 Cal.3rd 93, 101.)  Reliance on this citation fails for two reasons.  It applies the medical malpractice standard found in section 340.5, not the legal malpractice standard stated in section 340.6.  Although the language of the statutes is similar, it is not known whether the case law establishes similar application.  Also, it is a summary judgment case.  Even if its statement of the standard is useful here, it did not decide the issue as a matter of law on a demurrer.

 

Attorneys’ arguments about what Simental knew or should have known are just that, arguments.  No authority is cited saying that under circumstances similar to those here that actual or constructive knowledge exists as a matter of law.  The demurrer on this ground is OVERRULED.

 

Does the failure to exhaust administrative remedies bar the Complaint as a matter of law?  No.   In Campbell v. Regents of the University of California (2005) 35 Cal.4th 311, the Court held that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy must be exhausted before this court will act.  (Campbell, at p. 321-322.)  The exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the Courts. (Ibid.)

 

Here, Attorneys argue Labor Code section 5901 provides an “administrative remedy” that Simental was required to utilize.  No authority is cited for this proposition, other than the text of the statute.            Reading the annotations, this section pertains to the reconsideration of WC orders, not to the reasons a party made the decisions he did.  The statute does not appear to apply in any way to preclude a legal malpractice suit based upon bad advice.  The demurrer on this ground is OVERRULED.

 

Should the demurrer to the 1st COA be sustained?  No.  The elements of a COA for legal malpractice are the same as in other kinds of actionable negligence – duty, breach, proximate cause, damage.   (1 Witkin, Calif. Procedure (5th Ed. 2008) Attorneys, §285.)  The demurrer says the Complaint fails to allege that the only conduct alleged to have been committed by Attorneys is to settle the WC claim, but there are no facts demonstrating negligence.      This argument does not address how the Complaint fails to address any elements.  Assuming the issue is breach of duty, under the rule of liberal interpretation of pleading, this is sufficiently alleged.  The gist of the Complaint is that the advice to settle fell below the standard of care because of all the facts alleged in Complaint, ¶7.  The demurrer to the first COA is OVERRULED.

 

Should the demurrer to the 2nd COA be sustained?  No.  The elements of a COA for breach of fiduciary duty by an attorney are stated in CACI 4106:

 

4106 Breach of Fiduciary Duty by Attorney—Essential Factual Elements

[Name of plaintiff] claims that [he/she/it] was harmed because [name of defendant] breached an attorney's duty [describe duty, e.g., “not to represent clients with conflicting interests”]. To establish this claim, [name of plaintiff] must prove all of the following:

1  That [name of defendant] breached the duty of an attorney [describe duty];

2  That [name of plaintiff] was harmed; and

3  That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

Attorneys say Simental does not allege that they “somehow accrued a benefit to [themselves] by advising plaintiff to settle, or applied undue influence on plaintiff, or otherwise mislead plaintiff or concealed information relevant to the settlement.”  However, a fair reading of the Complaint supports an inference that Attorneys did not advise Simental about the terms of the settlement at all.  The allegations support the inference that they stood by while the interpreter took over and did not assure Simental had a full understanding of what was going on.  The demurrer to the second COA is OVERRULED.

(2) Defendants’, Fari Rezai and Rezai & Associates, Motion to Strike portions of the Complaint is GRANTED.   The motion to strike attorney fees is GRANTED.  A prayer for attorney fees – without an actual basis for recovery of fees – is a nullity.  (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858.)  It is immaterial whether it is in the Complaint or not.  As such, striking them, or leaving them behind, is of no import.

 

The motion to strike punitive damages is GRANTED.  The crux of this case is attorney negligence.  No facts showing malicious intent or a conscious disregard of plaintiff’s rights have been alleged.  A breach of fiduciary duty alone, without a factual showing of malice, fraud, oppression, or conscious disregard, is insufficient to allege the basis for an award.  Mere carelessness or ignorance of the defendants does not justify the imposition of punitive damages.  (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.)  The allegations do not show anything more than carelessness or ignorance.

 

Plaintiff is granted 10 days leave to amend.

 

11

Dan Copp Crushing vs Copp

Motion for Preliminary Injunction  

 

Tentative Ruling: Plaintiff has not met his burden of establishing he is entitled to a preliminary injunction, and the motion is denied.  The OSC is discharged, and the TRO issued on 7-11-15 is hereby dissolved.

 

Plaintiff has not established he is likely to prevail in showing that the October/November 2013 transfer by Ernest Copp of all of his shares to his grandson, Jason Ayers, was void or otherwise unenforceable.  And even if it that transfer was void, Plaintiff has not shown Ernest Copp thereby forfeited his shares and Plaintiff now has the legal right to acquire all or a portion of them, thus gaining more voting rights than he already has.

 

The undisputed evidence shows that, in 2013, Ernest Copp offered a portion of his shares in the corporation to Plaintiff Dan Copp, and the offer was rejected.  Thereafter, in November 2013, Ernest notified Dan that he was transferring by gift of all of his shares in the corporation to his grandson, Jason Ayers (Ernest Copp Dec., Exh. “A”; Daniel Copp Dec. § 8). Plaintiff did not object to the transfer or demand the right to buy out the shares.  Rather, Plaintiff signed the stock certificate to Jason Ayers on behalf of the corporation as its President. Plaintiff recognized Jason Ayers as a shareholder of the corporation until January 15 when he first objected to the transfer.  Further, the evidence shows Plaintiff and his sister were recipients of multiple gifts of stock over the years from their father, without ever complying with the right of first refusal provisions, and with no objection from Plaintiff.  The questions of who between Ernest and Jason now owns Ernest’s shares is a question for a later date.  But the fact remains that Plaintiff has not established any right to those shares.

 

Plaintiff also has not established he will suffer irreparable harm if an injunction is not granted. As to the proposed amendment to the articles and bylaws, Plaintiff has failed to show the outcome of this litigation will affect his voting rights.  Any alleged other harm that results to Plaintiff from Defendants’ alleged breaches of fiduciary duties or exercise of their voting rights pending this litigation, such as removing Plaintiff as President, can be remedied by a monetary damages award, and Defendants will need to make those decisions at their own potential peril.

 

Counsel for Plaintiffs is to give notice.