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.

 

 

April 17, 2018

2:00 PM

                       

 

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Case Name

Tentative

1

Anton Segerstrom  vs. AXA Art Ins

 

15-820323

 

(1) Motion to Augment Expert Witness List (2) TSC

 

Tentative Ruling: Defendant Fine Art & Collectibles Enterprises dba Face Insurance Services’ motion for leave to augment supplemental expert witness designation is GRANTED. 

 

Defendant has demonstrated good cause for the relief sought.  Specifically: (1) Defendant’s failure to designate Ms. Pearson as non-retained expert witness was a result of mistake, inadvertence and/or excusable neglect; (2) Defendant’s new counsel promptly sought to augment the expert witness designation after he substituted in as Defendant’s counsel of record; (3) information was served on all other parties; (4) Ms. Pearson will be available for deposition; (5) since the trial date has now been vacated, it appears Plaintiff will not be prejudiced; and (6) Defendant attempted to resolve the issues before seeking relief. 

 

Defendant to give notice. 

 

2

Ballo vs. York

 

17-940926

 

Motion to Strike Portions of Cross-Complaint

 

Tentative Ruling: Defendant Esther Nguonly, individually and dba as Nguonly & Veracruz’ (“Moving Defendant”) Motion to Strike Second Cause of Action (anti-SLAPP) is GRANTED, in part, as follows.

 

The Court finds that in determining whether to grant Defendant her attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c)(1) despite Plaintiff’s voluntary dismissal of the claim subject to the Motion is whether “a defendant would have prevailed on its motion to strike is an essential prerequisite to an award of attorney fees and costs pursuant to section 425.16, subdivision (c)(1).” (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457.)

 

The Court finds that the 2nd COA (breach of fiduciary duty) does arise from protected activity. Here, the 2nd COA for breach of fiduciary duty arises out of litigation-related conduct because it is based on Moving Defendant’s alleged failure to inform Plaintiff that the Suri v. Regents Action had been settled and failed to inform Plaintiff of the amount of the settlement; and Moving Defendant’s alleged failure to provide Plaintiff with a copy of the settlement agreement and failure to negotiate a settlement that provided that a certain amount be held in trust by Moving Defendant for Plaintiff’s benefit. (See FAC, ¶¶ 32, 33, and 36-39.) As such, Moving Defendant met her initial burden that the 2nd COA for breach of fiduciary duty arises from acts protected by the anti-SLAPP statute.

Because Defendant met her initial burden, the burden shifted to Plaintiff to demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 472.)  Here, Plaintiff failed to meet his burden that he would prevail on the breach of fiduciary duty cause of action because Plaintiff does not cite any legal authority to support his allegation in paragraph 36 of the FAC that a successor counsel owes a fiduciary duty to prior counsel. In the matter of Riley cited by Plaintiff is not a California Court opinion, is not a reported case, and is only a State Bar of California opinion. Weiss v. Marcus (1975) 51 Cal.App.3d 590, 598 does not hold that there is a fiduciary relationship between the prior and former counsel. Rather, Weiss only holds that “the lien created by the written agreement between plaintiff and Oran survived plaintiff's discharge, and that such lien entitled plaintiff to recover, out of the proceeds of the settlement, the reasonable value of his services rendered prior to discharge.” (Id. at 598.) And, Weiss only held that the money had and received cause of action, conversion, unjust enrichment, constructive trust, and intentional interference with contractual relationship claims were not subject to demurrer. (Id. at 598-600.) It did not deal with a breach of fiduciary cause of action.

 

As the prevailing party pursuant to Code of Civil Procedure section 425.16(c)(1), the Court GRANTS Defendant reasonable attorney fees and costs of $9,040 – the previous amount sought ($6,720) plus an additional $2,320 to prepare the Supplemental briefing (3.3 hours) and appearing at the hearing (2.5 hours) at $400 hour. (See York Supp. Decl. Para. 2.) Plaintiff does not dispute these amounts are “reasonable” in the Opposition or Supp. Opposition.

 

Moving Party is to give notice.

 

3

Brukhardt vs. City of Orange

 

16-861957

 

(1-5) Motions to Quash Discovery Subpoena

 

Ruling:  (1-5) Off Calendar – no hearing will be held.  Notice of Settlement filed.

 

4

Castor vs. Baily

 

17-904159

 

Motion to Strike Answer

 

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

 

5

Crofts vs. Regents of University of CA

 

17-922060

 

(1) Motion for Judgment on the Pleadings (MJOP) (2) CMC

 

Tentative Ruling:  Defendant The Regents of the University of California’s Motion for Judgment on the Pleadings is DENIED, in its entirety, as follows.

 

The Court DENIES Defendant’s RFJN of Exhibits 1 and 2 as they are correspondence from Plaintiff’s attorneys and are not policies of the University of California. The Court GRANTS Defendant’s request for judicial notice of Exhibits 3, 4 and 5 pursuant to Evidence Code sections 452(b), (c), and/or (h). (See also Mendoza v. Regents of the University of California (1978) 78 Cal.App.3d 168, 176, FN3.) (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal. App. 4th 1475, 1482.)

 

Defendant contends Plaintiff’s claims in this action are barred by res judicata because his claims in the administrative hearing arise out of the same issue – his termination – and the factual allegations are the substantially the same. Defendant seeks to rely on Exhibits 1 and 2, in part, to support such contention (see Motion, p. 7, lines 16-20), but the Court DENIED Defendant’s request for judicial notice of same. As such, these exhibits are not properly before this Court.

 

In any event, contrary to Defendant’s contention, Plaintiff is not barred from pursuing his claims through both the administrative appeal process and through litigation before the Court and Defendant has not established that the same “primary rights” were at issue before the administrative appeal and this litigation.

 

“[C]ase law recognizes two distinct rights or interests at stake when a civil service employee challenges discipline or termination on discriminatory or retaliatory grounds. The primary right protected by the state civil service system is the right to continued employment, while the primary right protected by FEHA is the right to be free from invidious discrimination and from retaliation for opposing discrimination.  (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal. App. 4th 1475, 1483–84.) “[S]tate employees may pursue their claims of employment discrimination with either the Board or the DFEH or both.” … there is no requirement that a state employee raise the FEHA issue during the administrative review process, and the doctrine of res judicata does not act as a complete bar to a FEHA action when an employee seeks review through an alternative administrative remedy available as a consequence of the employee's civil servant status. (Id.)

 

And, contrary to Defendant’s contention Villacres v. ABM Indus. Inc. (2010) 189 Cal.App.4th 562 is not directly on point.  In fact, it is factually and procedurally inapposite. In Villacres, the employees sued their employer in a prior class action lawsuit for Labor Code violations and two days after a settlement was approved in that action, members of the prior class filed a separate lawsuit against the same employer seeking penalties under the Labor Code Private Attorneys General Act of 2004. Here, unlike in Villacres, Plaintiff did not file a lawsuit against Defendant previously, Defendant did not establish the same primary rights were involved in the administrative action and this lawsuit, and Villacres involved summary judgment, not a demurrer.

 

Moving Party is to give notice.

 

6

Dack Marasigan, LLP vs. Cuellar

 

16-835807

 

Motion to Be Relieved as Counsel of Record

 

Ruling:  Off Calendar – no hearing will be held.  Eduardo Martorell and Angelo Mishriki’s unopposed Motion to Be Relieved as Counsel of Record is GRANTED. Attorney is relieved as counsel of record upon the filing of the POS of the signed order on the client.

 

MP to give notice. 

 

7

Dillon vs. Rancho Santiago College

 

14-745864

 

Motion for Summary Judgment and/or SAI

 

Tentative Ruling: Defendant Rancho Santiago Community College District’s motion for summary adjudication is DENIED; motion for summary judgment is DENIED. 

 

Request for Judicial Notice:  The Court takes judicial notice of the unsigned Declaration of Judyanne Chitlik filed with the Court on January 29, 2018.  (Evid. Code, § 452(d).) 

 

Evidentiary Objections: Declaration of Judyanne Chitlik:

1.    Overruled [Defendant filed Notice of Errata on 4-9-18.  It appears Defendant inadvertently failed to attach the signature page to the Declaration filed with the Court.]

2.    Overruled

3.    Overruled  

 

Motion for Summary Adjudication/Judgment:  Defendant moves for summary adjudication of the first, second and third causes of action on the ground that Plaintiff cannot establish she was a qualified individual that could perform the essential functions of the position with accommodation. 

 

Plaintiff, in opposition submits evidence that because of Plaintiff’s medical condition, the District provided accommodations from approximately February 2007 to February 2012, [wherein Plaintiff’s schedule would be modified to allow her to perform work at the office in the afternoon and evening and work from her home both before and after the time she spent in the office, with opportunities for rest breaks at home], but that after her ankle injury on February 13, 2012, the District would not allow her to return to work with such accommodations [but required Plaintiff to be on-campus on a “normal” schedule of 8:00 a.m. to 5:00 p.m., or 9:00 a.m. to 6:00 p.m.].  (Opposition, Dillon Decl., ¶¶ 8-16.)  Plaintiff also submits evidence that she was able to perform the essential functions of her job with the prior accommodations, but that the District failed to reasonably accommodate Plaintiff’s medical condition (Id., ¶¶ 7, 12, 20, 26, Exhs. 6-8); and that the District failed to respond to her requests for accommodations (Id., ¶¶ 18, 20). 

 

The evidence submitted by Plaintiff raises a triable issue of fact as to whether Plaintiff was able perform the essential functions of the positon with reasonable accommodation, whether the District engaged in a good faith interactive process, and whether the District failed to provide reasonable accommodations.

 

Plaintiff to give notice. 

 

8

Green vs. Padilla

 

15-778625

 

Wage and Earnings Assignment

 

Tentative Ruling:  Plaintiff Sally Green’s unopposed Motion for Assignment Order re Rights to Payment of Money Due or to Become Due is GRANTED as follows.

 

The Court ORDERS that the right to payment of Judgment Debtor Mary Padilla (“PADILLA”) by the United States – Internal Revenue Services – her employer, be assigned to the Judgment Creditor Sally Green (“GREEN”), until such time as the Judgment herein is satisfied or this Order is amended. The Court ORDERS that 25 percent of PADILLA’s disposable future earnings be assigned to GREEN and that the United States – Internal Revenue Services shall pay same to GREEN’s attorney, KER Legal Group, located at 2601 Main Street, Suite 560, Irvine, CA, 92614, (949) 252-9934, and that same be applied to the Judgment until it is satisfied in full or this Order amended.

 

Moving Party is to give notice.

 

9

Randazzo vs. Capital One, N.A.

 

16-876323

 

Motion to Compel Production

 

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

 

10

Smith vs. Eftekhari

 

17-950451

 

Motion to Compel Production

 

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

 

11

Vegh  vs. Firstline Security Systems

 

17-937308

 

CMC  

 

Ruling:  Off Calendar – no hearing will be held.   CMC continued to 4-24-18, Dept. C11, at 8:45 am.

 

Clerk to give notice.  

 

12

Washington vs. Aetna Inc

 

15-811734

 

Motion to Compel Production 

 

Ruling:  Off Calendar – no hearing will be held.   Continued to 4-24-18, Dept. C11, at 2 pm.

 

MP to give notice.  

 

13

Zamora vs. Coastal Roofing Co

 

16-888080

 

(1) Motion for Judgment on the Pleadings (MJOP) (2) CMC

 

Ruling: (1-2) Off Calendar – no hearing will be held.  Based on the information before the Court, it appears some family health issues have precluded any meaningful meet and confer efforts.  Defendant Sunwest Masonry & Concrete Inc.’s MJOP and the CMC are continued to 5-22-18, Dept. C11, at 2 pm. to allow MP to comply with Code of Civil Procedure section 430.41. Nine court days prior to the continued hearing date, Counsel for MP is to file a declaration which complies with section 430.41.

 

MP to give notice.

 

 

14

Espinoza vs. Espinoza

 

15-808283

 

(1) Motion to Lift Stay (2) CMC

 

Tentative Ruling:  Defendant Bryant Espinoza’s Motion to Lift Stay is GRANTED.

 

CRC Rule 3.515(g) provides: “Thirty or more days following issuance of the stay order, any party that is subject to the stay order may move to terminate the stay.”

 

Defendant states that this court stayed this action pending the family law action with respect to the determination of Plaintiff’s ownership interest of the subject real property (9 Beachcrest, Newport Coast, CA 92657). Defendant contends that the Family Law Court resolved the ownership dispute of the subject real property (i.e., determined that Plaintiff has no ownership interest in the same), and therefore seeks to dissolve the stay order.

 

Defendant Bryant provides evidence showing that the Family Law Court issued a Notice of Entry of Order on 1-2-18 finding that Plaintiff has no ownership interest in the subject real property (9 Beachcrest, Newport Coast, CA 92657). (Decl. of Kevin Barba, exhibit C.)  The Family Law Court therefore directed the “Morris Claimants” to prepare a demurrer to Plaintiff’s complaint, without leave to amend, and to prepare a dismissal of the “Morris Claimants” with prejudice. (Id.)  The court also issued an order expunging the lis pendens recorded against the subject real property by Plaintiff. (Id.

 

Because the Family Court resolved Plaintiff’s ownership dispute in the subject real property (i.e., determined that Plaintiff has no ownership interest in the same), it appears the underlying issue that led to the stay order has been resolved and this court should GRANT Defendant’s motion to lift the stay.

 

Prevailing Party is to give notice.