TENTATIVE RULINGS

 

DEPT C-11

 

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 to find out if all parties are submitting and then moving party is to telephone the clerk at (657)622-5211 with the status of all parties. 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.

 

 

June 19, 2018

2:00 PM

                       

 

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Case Name

Tentative

1

Allah vs. MV Transportation

 

15-789909

 

1.  Abd Allah   v.   MV Public Transportation, Inc.

 

(1) Motion to Vacate/Set Aside Judgment (2) Status Conference (3) TSC

 

Ruling:  Off Calendar – no hearing will be held.  Plaintiff Nabil Abd Allah’s Motion to Vacate the Summary Judgment Ruling is CONTINUED to 6-25-18, Dept. C11, at 10 am. 

 

Defendants to give notice.

 

2

Castillo vs. America’s Wholesale Lender

 

18-992625

 

2.  Castillo   v.   America’s Wholesale Lender

 

OSC re: Preliminary Injunction

 

Ruling:  Off Calendar – no hearing will be held.  OSC re: preliminary injunction is continued to 8-21-18, Dept. C11, at 2 pm at the request of Defendant.  (Code Civ. Proc., §527(c), (d).)   Any Opposition is to be served/filed by 8-13-18, 4 pm, personal delivery.   Any Reply is to be served/filed by 8-15-18, 4 pm, personal delivery.

 

MP to give notice.

 

 

OSC re: preliminary injunction is continued for 60 days. Defendant 2005 Residential Trust 3-2 has filed a request for a continuance per Code of Civil Procedure section 527(d)(4): 

 

(4) The opposing party is entitled to one continuance for a reasonable period of not less than 15 days or any shorter period requested by the opposing party, to enable the opposing party to meet the application for a preliminary injunction. If the opposing party obtains a continuance under this paragraph, the temporary restraining order shall remain in effect until the date of the continued hearing.

RP is entitled to the continuance. Additionally, Plaintiffs are agreeable to a continuance if it is for 60 days (instead of the 30 day continuance sought by Defendant), due to vacations and trial. Both parties agree the TRO will remain in effect until the continued hearing date.

 

3

Elks Building Assoc vs. J.K. Properties

 

13-644145

 

3.  Elks Building Association   v.   JK Properties, Inc.

 

Motion for Attorney Fees

 

Tentative Ruling: Motion for Attorney Fees brought by Plaintiff Elks Building Association of Santa Ana is GRANTED in the reasonable amount of $176,376.80.

 

Similarly, the Court notes Plaintiff is entitled to immediately have costs added to the Judgment, in the amount of $29,437.94, based on the undisputed Memorandum of Costs filed on February 1, 2018 and pursuant to CRC 3.1700(b).

 

4

Farsakh vs. Urth Caffe Corp

 

16-849787

 

4.  Farsakh   v.   Urth Caffe Corporation

 

Motion for Bifurcation

 

Ruling:  Off Calendar – no hearing will be held.  Notice of Settlement filed. 

 

5

Garcia vs. Life Care Centers of America

 

16-883358

 

5.  Garcia   v.   Life Care Centers of America, Inc.

 

(1) Motion to Quash Discovery Subpoena (2) Motion to Quash Discovery Subpoena

 

Tentative Ruling: (1) Motion to Quash Discovery Subpoena for Business Records served by Defendant Life Care Centers of America on S.C.P.M.G/ Radiology Department is DENIED; however, to avoid any confusion the Court notes this subpoena is limited to seeking the records held by the Radiology Department, from Marriage and Family Therapist, Monisha Dahlia, Licensed Clinical Social Worker, Daniel Hames Garcia, and Licensed Clinical Social Worker, Diana Ortiz.

 

The right to privacy extends to medical records. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198); however, “[o]n occasion [a party’s] privacy interests may have to give way to the opponent’s right to a fair trial.  Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199.)

 

Additionally, “a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

 

Here, Plaintiff’s First Amended Complaint includes the allegation that, as a result of Defendant’s conduct “Plaintiff has suffered and continues to suffer emotional distress, humiliation, depression, anxiety, mental anguish, and embarrassment, as well as the manifestation of physical symptoms.” (See ¶55 of FAC (attached to 9-12-17 filing).)

 

Based on the above, Plaintiff has placed her mental state in issue, entitling Defendant to discover the same; however, any such discovery shall be specifically limited to the mental health providers identified by Defendant.

 

The remainder of the Motion to Quash is DENIED.

 

While the Subpoena broadly seeks “all documents,” given the individuals identified are licensed family therapists and social workers, the requests are necessarily limited to documents relevant to Plaintiff’s emotional and mental wellbeing.

 

Further, while Plaintiff asserts the information may include medical information of third parties, there has been no compelling showing of the same.  Moreover, to any limited extent Plaintiff discussed family members with her therapists and social workers, in the context of addressing her mental health, the same is directly relevant to her claim for emotional distress.

 

Similarly, Defendant reasonably seeks information predating Plaintiff’s employment, as the same permits Defendant to investigate alternative sources for emotional distress.  A five-year period predating the alleged discriminatory conduct does not appear unreasonable.

 

Last, to any extent the billing includes medical information, for the reasons stated above, this information is sufficiently relevant to overcome Plaintiff’s right to privacy.

 

(2) Motion to Quash Discovery Subpoena for Business Records served by Defendant Life Care Centers of America on Kaiser Permanente Billing Department is GRANTED, as the subpoena is overbroad.

 

In contrast to the other subpoenas serving as the subjects of Motions to Quash, the subpoena directed to the Kaiser Billing Department includes no limitations which would require only the production of records relevant to Plaintiff’s mental and emotional wellbeing.

 

As argued by Plaintiff, this subpoena seeks the entirety of Plaintiff’s billing records from Kaiser.   This information is irrelevant and would violate Plaintiff’s privacy, as the billing codes will reveal medical procedures performed. 

 

6

Liang vs. Goodman

 

14-752667

 

6.  Liang   v.   Goodman

 

Motion for Summary Judgment and/or SAI

 

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

 

7

Madeline8, LLC vs. Bacon

 

18-976433

 

7.  Madeline8   v.   Bacon

 

(1) OSC re Preliminary Injunction (2) CMC

 

Tentative Ruling: The Court is inclined to appoint a receiver.   Lead Counsel to appear and argue at the hearing.   

 

8

Payne vs. Fire Insurance Exchange

 

17-961455

 

8.  Payne   v.   Fire Insurance Exchange

 

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

 

Ruling:  Off Calendar – no hearing will be held.  Defendant Certified Restoration Drycleaning Network, LLC’s Demurrer to the First Amended Complaint and Motion to Strike Portions of the First Amended Complaint is CONTINUED to 7-24-18, Dept. C11, at 2 pm.

 

The moving papers were served on: “Lawrence Levy, Esq., The Lawyer’s Group, Inc., 265 S. Randolph Avenue, Suite 230, Brea, California, 92821, Attorney’s for Plaintiff Jose Luis Munoz.” 

 

Service is improper because Jose Luis Munoz is not a party to this case, and The Lawyer’s Group, Inc. is not an attorney of record for this case.  Plaintiffs David Payne and Lobat Payne’s counsel of record and Defendants Response Team 1 Holdings, LLC and JFS Construction Group, LLC’s counsel of record were not served with the moving papers.  Therefore, the hearing on this matter CONTINUED to 7-24-18, Moving Party Attorney is ordered to properly serve the Moving Papers and give a Notice of Continuance by 6-22-18, and Moving Party is to file a Proof of Service reflecting the same by 6-25-18.

 

9

Scanware Solutions  vs. Ogburn

 

16-871796

 

9.  Scanware Solutions, Inc.   v.   Ogburn

 

(1) Motion to Substitute Assignee as RPI (2) Motion to Continue Trial

 

Ruling:  Off Calendar – no hearing will be held.  Assignee George Sharp’s Motion to Substitute Assignee as Real Party in Interest and Continue Trial is continued to 7-31-18, Dept. C11, at 2 pm. There is no indication from the POS(s) filed 6-4-18 that this motion (as opposed to the ex parte order, or the notice of continuance) was actually served on Debbie Ogburn and Michael Ogburn.

 

As to Plaintiff Scanware Solutions, Inc. it has obviously waived any defect in notice by filing a notice of non-opposition.

 

 MP to provide POS that the motion was served and Notice of Continuance by 7-2-18.

 

10

Team Makena  vs. Lasso

 

16-884951

 

10.  Team Makena, LLC   v.   Lasso

 

(1) Motion for Summary Judgment and/or SAI (2) CMC

 

Tentative Ruling: Motion for Summary Adjudication brought by Defendant John Lasso is DENIED.

 

First, the Motion for Summary Adjudication previously heard similarly involved §11 of the Operating Agreement and obligations under §11.1, §11.2 and §11.3.  The prior Notice of Motion was worded such as to seek adjudication of an “immediate contractual duty…” However, the instant Motion restates the issues, such as to seek adjudication of the existence of duties “at least as early as November 4, 2016” and “as of November 8, 2016.” (See Notice of Motion.)

 

The rewording is a response to this Court’s November 13, 2017 order, stating “the Notice of Motion did not seek a determination of any duty existing as of November 4, 2016…” (See November 13, 2017 Minute Order); however, Lasso’s request for adjudication is, again, somewhat ambiguous.

 

To any extent the request seeks adjudication of a continuing duty under these provisions, the Motion restates the prior Motion DENIED on November 13, 2017, without providing new facts or circumstances. (See Code Civ. Proc., §437c(f)(2).)

 

Alternatively, to the extent Lasso intended to seek adjudication of the existence of duties on the specific dates identified: November 4, 2016 and November 8, 2016, the Motion is DENIED as: (1) The requests do not “completely disposes of an issue of duty,” as required by Code of Civil Procedure section 437c(f)(1); and (2) The Operating Agreement does not state a timing requirement, wherein Team Makena was required to respond to Lasso’s requests and, consequently, it is not clear that the duties referenced by Lasso existed on November 4, 2016 or November 8, 2016.

 

First, the Third Amended Cross-Complaint filed by Defendant Lasso asserts, within the Second COA, a breach of the Operating Agreement based on Team Makena refusing to comply with Sections 11.1, 11.2 and 11.3 of the 2009 Operating Agreement “[a]s of the date of filing this Cross-Complaint…” (See ¶79 of TAXC.)

 

The Third Amended Cross-Complaint was filed on September 20, 2017; however, this language mimics ¶80 of the initial Cross-Complaint, filed on January 25, 2017.

 

Based on the above, the Cross-Complaint raises the issue of duty, under section 11 of the Operating Agreement, spanning at least through to January 25, 2017.

 

Consequently, interpreting the requests for adjudication as requests limited to November 4, 2016 and November 8, 2016, the requests do not fully resolve the issue of duty under section 11 of the Operating Agreement as raised in the Cross-Complaint.  Rather, the requested adjudication leaves open the possibility that future rulings will be required, addressing this same subject.

 

Second, pursuant to §11.3, given that Lasso indisputably resigned as a Manager on November 11, 2016 (See SSUF No. 9), the right to have counsel appointed extinguished on that date.

 

Moreover, while it is undisputed Lasso sent a demand for indemnification on November 4, 2016 (See SSUF No. 28), §11.3 does not articulate a date on which a response to any demand is required.  Instead, the provision broadly states “[t]he determination may be made before or after a claim for indemnification is made.”

 

Similarly, as of November 11, 2016, the Managers of Team Makena had the ability to determine Lasso did not meet the requirements under Article 11, such as to obviate any obligation under §11.2.

 

Likewise, any obligation under §11.2 could not arise until receipt of a written undertaking, which it is undisputed occurred on November 8, 2016. (See SSUF No. 30). Significantly, §11.2 merely required Team Makena to “promptly” make advances. 

 

Taking all of the above into consideration, there has been no clear showing that, pursuant to §11.3 and §11.2 of the Operating Agreement, Team Makena was required to perform under §11.3 and §11.2 on November 4, 2016 or November 8, 2016.

 

Based on the above, the Motion for Summary Adjudication is DENIED.

 

Last, as the instant Motion for Summary Adjudication was resolved through reference to the Operating Agreement and undisputed facts, the Court finds that none of the evidentiary objections submitted by the parties were material and no rulings are necessary. (See Code Civ. Proc., §437c(q).)

 

 

11

The Dreyfuss Firm

vs. RCS Recovery Services

 

17-911001

 

11.  The Dreyfuss Firm, APLC   v.   RCS Recovery Services, LLC

 

(1) Demurrer to Third Amended Complaint (TAC) (2) CMC

 

Tentative Ruling: Request for Judicial Notice:  The Court takes judicial notice of the court records attached to the Requests for Judicial Notice by both Plaintiff and Defendant.  (Evid. Code, § 452(d).) 

 

Demurrer: Defendant RCS Recovery Services, LLC (“RCS” or “Defendant”)’s demurrer to Plaintiff The Dreyfuss Firm’s TAC is OVERRULED.

 

Third COA (Enforcement of Attorney’s Lien): The TAC alleges adequate facts to support a claim against Defendant for collection on an attorney’s lien.  Specifically, the TAC alleges that a lien in favor of Plaintiff [attorney] upon the proceeds of a prospective judgment in favor of Ditech [Defendant’s predecessor in interest] for legal services rendered was created pursuant to an agreement (TAC, ¶ 3); Plaintiff obtained declaratory relief as to the existence and amount of the attorney’s lien against Ditech (TAC, ¶ 7; RFJN, Exhs. A and B); Defendant purchased the judgment from Ditech subject to the existing attorney’s lien (TAC, ¶ 8); and that Defendant did not pay Plaintiff the contingent fee it was entitled to through its attorney’s lien (TAC, ¶ 9). 

 

First and Second COAs (Quantum Meruit and Services Rendered [Common Counts]): The first and second causes of action are common counts, pled as an alternative way of seeking the same relief demanded in the third cause of action for collections on the attorney’s lien, and thus, good against both general and special demurrers. 

 

Fourth COA (Unjust Enrichment): The TAC adequately alleges facts demonstrating a receipt of a benefit and the unjust retention of the benefit by Defendant at the expense of Plaintiff.  (See TAC, ¶¶ 3-9.)

 

Plaintiff to give notice. 

 

12

Wells Fargo Bank vs. Mobias Corp

 

18-975111

 

12.  Wells Fargo Bank   v.   Mobias Corporation

 

Motion – Petition for Order for Environmental Assessment, Appraisal and Inspection

 

Ruling:  Off Calendar – no hearing will be held. Petition for Order for Environmental Assessment is CONTINUED to 7-31-18, Dept. C11, at 2 pm.  By 7-2-18, Moving Counsel is ordered to file an update with the Court as to the status of this Petition.  Pursuant to the Declaration of Thomas Biggs, the property which is the subject of this Petition was scheduled to be sold at a foreclosure sale in May of 2018.  (See ¶17 of Biggs Declaration.)   In the event a foreclosure has been completed, Plaintiff would no longer qualifies as a “secured lender” under Civil Code section 2929.5 and the instant Petition will have been rendered MOOT.  Assuming the petition is not MOOT, Petitioner is ordered to serve the Petition on defendants, via their counsel, Timothy G. McFarlin, (4 Park Plaza, Suite 1025, Irvine, California, 92614). Plaintiff seeks an order permitting it to enter defendants’ property, but there has been no showing the Petition was ever served on defendants, providing them notice of the same. 

 

Moving Party to give notice.       

 

13

Yonis  vs. Albertsons, LLC

 

16-857795

13.  Yonis   v.   Albertsons, LLC

 

Motion to Compel Deposition (Oral or Written)

 

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

 

14

Dounel vs. Duel

 

13-632132

14.  Dounel  v.   Duel

 

(1) Motion to Consolidate Related Actions (2) OSC re Why Stay Should Not Be Granted

 

Tentative Ruling: The Court consolidates the following two matters: Dounel v. Duel, et al., Case No. 2013-00632134 and Duel v Dounel, Case No. 2018-00995535.  However, request to stay this action is denied. 

 

Consolidate: Defendant Helda Duel is seeking to consolidate the instant action with the related action, Helda Duel v. Amir Dounel, et al., Case Number 30-2018-00995535 filed on 5-29-18 (the “related action”).  The two cases involve the same parties, the same properties, and seek adjudication of the ownership of such properties.  The cases are essentially the same, and it appears that “economy and convenience” would be served by a joint trial. 

 

Stay:  Based on the above tentative to consolidate the two actions, it appears a stay of this action is not necessary.  Although the granting of the consolidation will delay the trial - previously set for 6-4-18, but vacated on 5-31-18 due to the instant ex parte application - it appears a short continuance of the trial to address Defendant Helda Duel’s contentions in the related action will not unduly prejudice the parties in this action.  If the transfers are declared void under Family Code section 1102 as requested by Defendant Helda Duel in the related action, the claims made by Plaintiff in this action will be rendered moot.  Thus, the two cases are ordered consolidated. 

 

Defendant Helda Duel to give notice.