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.

 

Date: 07/29/14

 

 

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Case Name

Tentative

 

 

 

1

Alta Mira Investments vs Jahangiri

(1) OSC re Preliminary Injunction (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.   Hearing and CMC are continued by MP to 10-14-14, Dept. C13, at 2 pm.

2

BP West coast Products vs Adam Nick & Associates

(1) Motion to Stay the Action (2) Motion to Compel Further Responses to Form Irogs (3) Motion to Compel Further Responses to Form Irogs (4) Motion to Compel Further Responses to Special Irogs (5) Motion to Compel Further Responses to Special Irogs (6) Motion to Compel Production (7) Motion to Compel Production (8) Motion to Compel Responses to RFAs (9) Motion to Compel Responses to RFAs   

 

Ruling:   (1-9) Off Calendar – no hearing will be held.   (1) Plaintiff BP’s Motion to Stay this action is GRANTED.  BP’s unopposed Request for Judicial Notice is also GRANTED.

 

Defendant/Cross-Complainant Adam Nick & Associates, Inc. (“ANA”) concedes  the cross-complaint in this action (now the “SAXC”) involves the same subject matter as the action entitled ABZ, Inc. et al v. BP West Coast Products, LLC et al., (“ABZ”), in which ANA is a plaintiff.   The evidence also supports that conclusion, as both concern claims arising out of the franchise relationship, and specifically, claims of gas price manipulation and claims concerning the “Retalix” system. (RFJN, Exh. 1, ¶¶ 121, 152-153; SAXC, at e.g., ¶¶ 15(a)-(c), 20, 22, 28-37, 48, 57, & 63.)

 

ANA also concedes the Court may order a stay in this action as a result, as ANA has offered no authority to suggest otherwise. “Every brief should contain a legal argument with citation to authorities on the points made.  If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.”  (People v. Stanley (1995) 10 Cal.4th 764, 793.)

ANA’s attempt to now parse its claims is insufficient to avoid a stay.  “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.” (C.C.P. § 581(c), emphasis added).)  Here, however, ANA has attempted to dismiss only certain allegations.  That is not authorized by the language of §581(c), and ANA has identified no authority permitting same. 

 

In addition, although ANA states that it intends to drop specific claims asserted in the ABZ action, there is no evidence before the Court that this has occurred.  It also appears that this would in any event result in an improper splitting of ANA’s claims.

 

Accordingly, the requested stay is appropriate here, to avoid potential conflicts and conserve judicial resources, as the U.S. District Court in Los Angeles should be equally convenient for the parties and witnesses, and there is no apparent prejudice to either party.  The Court will thus GRANT the Motion to Stay, pending resolution of the ABZ action as between BP and ANA.

 

(2-9) In light of this ruling, BP’s eight Motions to Compel Further Responses, all filed on 2-28-14, are off calendar. 

 

Moving Party BP is to give notice.

3

Buder vs EMC Mortgage

Motion for Summary Judgment and/or SAI 

 

Ruling:   Off Calendar – no hearing will be held.    Continued by Stipulation to 9-9-14.

4

Jackson vs Jackson-Gossett

Demurrer to Amended Complaint

 

Ruling:   Off Calendar – no hearing will be held.   Case transferred to Riverside County.

5

Cossavella vs The Bank of New York Mellon

OSC re Preliminary Injunction

 

Tentative Ruling: Motion for Preliminary Injunction is DENIED, on the basis Plaintiffs have not demonstrated a probability of prevailing.  (Butt v. State of California (1992) 4 Cal.4th 668, 678.) 

 

First, the request for a preliminary injunction is DENIED, as Plaintiffs have not shown substantive unconscionability.   “Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided.”  (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 173 Cal.Rptr.3d. 241, 248.)  “A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be ‘so one-sided as to ‘shock the conscience.’” (Id.)  Here, Plaintiffs first assert the contract was substantively unconscionable, as it lead to the overly harsh result of Plaintiffs losing their life savings (in the amount of $849,169.50). (See ¶13 of Peter Cossavella Dec.)   Importantly, while the Loan Agreement has a causal connection to this result, Plaintiffs have not shown the Agreement required this result or that the loss of these funds benefitted Defendant, such that the Agreement itself was shockingly one-sided.

 

Likewise, while Plaintiffs asserts the Loan Agreement was substantively unconscionable, on the basis it required approximately 80 percent of Plaintiffs' gross monthly income to maintain (See ¶17 of Peter Cossavella Declaration), Plaintiffs have not demonstrated that these costs were hidden to them or that this term overly benefited Defendant. 

 

Plaintiffs do not dispute, for example, that the full amount of the loan funds were provided to them, upon its execution.  Additionally, accepting Plaintiffs position appears to run contrary to existing authority which indicates:

 

“A commercial lender pursues its own economic interests in lending money.   (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.)  A lender 'owes no duty of care to the [borrowers] in approving their loan.'   (Wagner v. Benson (1980) 101 Cal.App.3d 27, 35.)  A lender is under no duty 'to determine the borrower's ability to repay the loan.... The lender's efforts to determine the creditworthiness and ability to repay by a borrower are for the lender's protection, not the borrower's.” (Perlas v. GMAC Mortgage LLC (2010) 187 Cal.App.4th 429, 436.)   Based on all of the above, this case is distinguishable from Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89.

 

Next, Plaintiffs assert an injunction is necessary, as Defendant violated Civil Code section 2924.   Plaintiffs assert, specifically, that Defendants improperly proceeded to record a Notice of Trustee Sale, absent a valid Notice of Default.

 

While Plaintiffs do not dispute that a Notice of Default was recorded in October of 2011, they assert this Notice of Default was found invalid, when this Court previously issued a Preliminary Injunction, after finding a probability of prevailing on the claim under Civil Code section 2923.5.

 

Although not referenced, Plaintiffs appear to rely on Mabry v. Superior Court (2010) 185 Cal.App.4th 208, wherein the Court explained: “If section 2923.5 is not complied with, then there is no valid notice of default and, without a valid notice of default, a foreclosure sale cannot proceed.” (Id. at 223.)

While some have interpreted this statement as an indication that, following compliance with Civil Code section 2923.5, a new Notice of Default must be recorded, no clear authority exists which elaborates on this language.

 

Rather, as Mabry goes on to indicate, the only available existing remedy is postponement of the foreclosure sale.  It does not appear any clear requirement exists for a new Notice of Default. (Id. at 223 and 225.)   Instead, the language in Mabry can equally be interpreted as indicating that, upon compliance, the defect in the initial Notice of Default is cured.

 

Thus, as it is undisputed Defendant has now complied with Civil Code section 2923.5, the Notice of Default appears valid and Plaintiffs cannot demonstrate a probability of prevailing, on this claim. (See Defendant’s RFJN Exhibits “1” and “7”.) 

 

Last, Plaintiffs assert Defendants violated Code of Civil Procedure section 1209(a)(5), which defines “contempt” as disobedience of a Court order.  Initially, this position fails as Plaintiffs have not demonstrated that an act of contempt by Defendant, within this action, justifies staying foreclosure.

 

Additionally, this claim fails, as the conduct referenced by Plaintiffs does not appear to strictly violate a Court order:  While a Substitution of Trustee is common during foreclosure proceedings, a substitution is not a necessary part of, or encompassed within, the foreclosure process.

 

Rather, “foreclosure proceedings” generally refers to the recording of a Notice of Default or Notice of Sale, or the actual holding of the Trustee's Sale.

 

As Defendant did not engage in any of the above conduct, during the implementation of a TRO, no violation occurred.

 

Plaintiffs’ Request for Judicial Notice is GRANTED in part:  The Court takes judicial notice of the recorded documents, pursuant to Evidence Code section 452(h) (Items Nos. 1, 2 and 7).  Additionally, the Court takes judicial notice of court records, pursuant to Evidence Code section 452(d). (Items Nos. 3 and 4).  The remainder of Plaintiffs’ request is DENIED.

 

Defendant’s Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452(d) and (h).

 

6

Cuesta vs Saunders Law Group

(1) Motion to Compel Arbitration (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.   Motion by Defendants Gary S. Saunders and Saunders Law Group to Compel Arbitration and for Stay of Action Pending Arbitration:   On July 16, 2014, Plaintiff, Sheila Cuesta, filed a Notice of Non-Opposition to the Motion indicating she does not oppose the Motion.  However, one preliminary matter must be addressed.  The moving parties appear to be “out of court,” having had their default entered on April 1, 2014.  The entry of default appears to have been made in error.  On March 26, 2014, the moving parties timely filed their Motion to Compel Arbitration in lieu of an answer to the First Amended Complaint, which extended their time to answer. (Code Civ. Proc., § 1281.7.)  The Court hereby sets the defaults as to Gary S. Saunders and Saunders Law Group aside on its own motion pursuant to Code of Civil Procedure section 473(d). 

 

The unopposed Motion to Compel Arbitration and For a Stay of this Action is GRANTED pursuant to Code of Civil Procedure section 1281.2.   Plaintiff is ordered to submit all claims alleged in the Complaint against Saunders Law Group and Gary S. Saunders to arbitration pursuant to the terms of the Agreements attached as Exhibits “A” and “B” to the Motion. 

 

The Court will continue to retain jurisdiction to enforce any arbitration award.

 

The Court STAYS the instant litigation pursuant to Code of Civil Procedure section 1281.4, until an arbitration is conducted in accordance with this order.

 

This matter is set for a CMC/Post-Arbitration Review Hearing on 11-21-14 at 8:45 am in Dept. C13.   Moving Parties shall provide notice of this order, and comply with Rule 3.650 of the California Rules of Court.

7

FHDI vs American Life

Demurrer to First Amended Cross-Complaint (FAXC)

 

Tentative Ruling:   Demurrer to FAXC is SUSTAINED, without leave to amend, as to the Fifth COA asserted against Emilio Gonzalez.  OVERRULED, as to the remainder.   Additionally, Cross-Defendants’ Request for Judicial Notice is GRANTED.

 

With respect to the Third COA, Complainants assert, most clearly, that FHDI promised to: (1) continue to fund the credit line as long as FHDI had a two to one value to loan ratio; (2) to allow ALC and SLF to continue to develop their properties and in connection therewith encumber the properties; and (3) that FHDI would look to “the leasehold deed of trust against the long term lease of FHD” as its primary collateral. (¶43(a)-(c) of FAXC.)  These allegations amount to alleged “false promises,” however, Complainant clearly alleges “FHDI had no intention of performing their promises” at the time the promises were made, as required to state a claim.  (¶44-¶45 of FAXC and Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1414.) 

 

Initially, while Cross-Defendants assert the above referenced allegations lack the required specificity, Complainants allegation that the statements were made by “Emilio Gonzalez and Does 51-100” between “September 1, 2012 and November 1, 2012” are sufficiently specific to survive Demurrer.   Significantly, the time period provided by Complainants appears sufficiently particular, to allow Cross-Defendants to understand the nature of the claims against them.  Additionally, the Cross-Complaint clearly indicates these alleged misrepresentations occurred during the negotiations for the loan.  (¶42 of FAXC.)  Based on the above, the Demurrer for failure to state facts is OVERRULED.

 

However, Cross-Defendants are correct that Complainants have created an ambiguity in their pleading:  While the Cross-Complaint asserts the misrepresentations occurred between September 1, 2012 and November 1, 2012 (¶42 of FAXC), it likewise concedes the relevant loan agreement “closed on October 30, 2012.” (¶5 of FAXC.)  Based on the above, it is possible that some misrepresentations were made following the execution of the loan, and absent reliance.

 

Pursuant to Code of Civil Procedure section 430.10(f), a party against whom a Complaint has been filed may object by demurrer, when the pleading is uncertain.  “Uncertain” includes ambiguous or unintelligible. (Id.)  Further, pursuant to Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, “a Plaintiff is required…to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a Defendant with the nature, source and extent of his cause of action.” (Id. at 608.)   In this instance, although somewhat ambiguous,  the Court finds the allegations are not so ambiguous as to render Cross-Defendants incapable of understanding the allegations against them.  Thus, the Demurrer for uncertainty is OVERRULED.

 

As to the Fifth COA, Complainants sufficiently allege an oral confidentiality agreement: As before, Complainants allege an agreement was reached in April of 2013, prior to a settlement meeting, “that everything said during the meeting would be held in confidence and would not be used against the other party.” (¶26 of FAXC.)   Additionally, the Cross-Complaint now asserts that “[w]hen the settlement discussions continued over the course of several months, Mr. Grantham and Mr. Gonzalez agreed, orally, to extend this confidentiality agreement to subsequent settlement communications.” (¶54 of FAXC.)

 

Further, the Court finds the litigation privilege does not apply to the bar the instant claim:  In this instance, as the parties allegedly agreed that statements made during settlement negotiations would remain confidential and not be used against either party, the very purpose (as in the case of a covenant not to sue) was to restrict litigation.   Thus, applying the litigation privilege thereto clearly frustrates the purpose of the contract.  (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1494; Navellier v. Sleten (2003) 106 Cal.App.4th 763, 774.)  Rather, as in Navellier, the privilege has been waived, by the parties agreement.  Thus, the Demurrer is OVERRULED.

 

Last, however, the Demurrer is SUSTAINED, without leave to amend, as against Defendant Emilio Gonzalez, as the Cross-Complaint concedes Mr. Gonzalez entered into the alleged agreement, only, “on behalf of the Cross-Defendants” and not in his individual capacity.  (¶54 of FAXC.)

 

Based on the above concession, Mr. Gonzalez cannot be held individually liable for any breach.

 

8

Innovations vs Rubinstein

Motion to Appear Pro Hac Vice

 

Tentative Ruling:    Andrea Dean’s verified application to appear as pro hac vice for Plaintiff Innovation Ventures, Inc. is GRANTED, contingent on a showing MP properly gave notice of the Court’s 7-2-14 minute order advancing the hearing date from 10-28-14 to 7-29-14.  On the merits, the Motion should be granted, as Applicant has complied with CRC 9.40.

 

This application for pro hac vice was originally scheduled for 10-28-14. However, Plaintiff filed an Ex Parte to advance the hearing, which was granted on 7-2-14, setting the hearing for 7-29-14. The Court ordered MP to give notice. To date, there is no showing MP has complied with the Court’s Order to give notice of the advanced hearing date.  Therefore, the Court is inclined to grant this motion only on MP showing  it has provided notice of the 7-2 Minute Order.

9

Peterson vs Control Air

Motion to Compel Production

 

Ruling:   Off Calendar – no hearing will be held.   Motion to Compel Production is DENIED, as the evidence submitted to the Court indicates the disputed report is subject to the attorney-client privilege.

 

The Declaration attached to the Opposition by Mr. Smith indicates: (1) Mr. Smith and another attorney designed the incident report “based on information needed should IRVINE be sued as a result of an accident occurring on one of its properties…” (¶4 of Smith Dec.); and (2) Irvine has consistently taken the position that incident reports are attorney-client privileged. (¶6 of Smith Dec.)

 

Additionally, Irvine provides the Declaration of Mr. Brian  Von  Helmolt, the “Director, Risk Management” at The Irvine Company, who indicates: “Incident reports are prepared in anticipation of litigation and are intended for legal counsel’s use in case a claim is made or a lawsuit is filed against The Irvine Company LLC or one of its affiliates or subsidiaries.” (¶3 of Von Helmolt Dec.)

 

Based on the above, it appears the reports were “primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made” and thus are “are attorney-client privileged communications.”  (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535.)

 

Further, while Plaintiff asserts any privilege has been waived, the identified portions of Mr. Walti’s deposition testimony do not appear to reveal a “significant part of the communication.” (Evid. Code, §912(a)).

 

Finally, the Court OVERRULES Plaintiff’s Objections Nos. 1 and 2 to the Declaration of Mr. Smith and Objections Nos. 1-3 to the Declaration of Mr. Von Helmolt.   The Court SUSTAINS Objections Nos. 3-8 to the Declaration of Mr. Smith.

 

Objections to the Smith Declaration (filed on 6-25): 

 

·        OVERULE: Nos. 1 and 2.

·        SUSTAIN:  Nos. 3-7 (as Hearsay, as this testimony seeks to summarize the deposition testimony of others) and No. 8 (for lack of foundation).

 

The Court OVERRULES Objections Nos. 1 and 2, as Mr. Smith’s testimony that he designed the incident report, provides sufficient foundation, for the testimony describing the report’s intended purpose.   Additionally, the referenced testimony (within Objections Nos. 1 and 2) does not appear to constitute hearsay.

 

Objections to the Von Helmolt Declaration (filed on 7-22):

 

·        OVERRULE:  Nos. 1-3.

 

The Court OVERRULES all objections to Mr. Von Helmolt’s Declaration, as Mr. Von Helmolt declares he is the Director of Risk Management at The Irvine Company; this is sufficient foundation for his testimony concerning the practices of this Department. (¶1 of Von Helmolt Dec.)

10

Rangle vs Tenore

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

 

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

11

TJHC Inc. vs Kearney

(1) Motion to Strike Second Amended Complaint (SAC) (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.   (1) Motion to Strike is DENIED.  Initially, this Court elects to exercise its discretion against striking the SAC as untimely, as the SAC appears to have been timely filed, if not served, on March 26, 2014. (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 828.)

 

Additionally, Plaintiff’s substitution of the correct party (operating under the fictitious business name Platinum Properties) falls “within the scope of the order granting leave to amend” and “directly responds to [the] trial court’s reason for sustaining the demurrer,” as the intent of this Court’s previous order, was for Plaintiff to clarify and identify the actual party operating under the relevant business name. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)   Thus, the Court finds the amendment to be proper.

 

Last, the Court declines to strike the substitution of Plaintiffs, on the basis the substitution is a sham pleading, as the allegations do not appear directly contradictory and, rather, the substitution appears to merely clarify the correct party. 

 

Defendant’s Request for Judicial Notice is GRANTED.

 

(2) CMC is continued to 9-23-14, Dept. C13, at 8:45 am.  MP is to give notice.

12

Villanueva Rostro vs Pettis

(1) Motion to Strike Potions of Complaint (2) Joinder

 

Ruling:   Off Calendar – no hearing will be held.   Defendant Robert Pettis’ Motion to Strike (joined by Robert McFarland Pettis, M.D, Inc.’s) is GRANTED in part and DENIED in part.

 

Plaintiff has pled sufficient facts under Civil Code section 3294 to warrant the issue of punitive damages going to a jury. This is not a case where Plaintiff simply pleads the defendant was speeding when the accident occurred.  Here, Plaintiff pleads  Defendant Pettis and Defendant McKeever were engaged in a racing contest, driving in excess of 70 mph in a 45 mph zone, when Pettis crossed over the center line of oncoming traffic and hit Plaintiffs’ decedent.  (Complaint ¶71.)  These facts show a conscious disregard for the health and safety of Plaintiffs’ decedent. The issue of the survival statute and punitive damages is best left to discovery and the merits of the action.  Accordingly, the motion to strike punitive damages language is denied. 

 

The Motion to Strike attorney fees is granted.  Plaintiff makes no argument in opposition to the motion as to attorney fees. There being no statutory or contractual basis for such fees pled in the complaint, the motion has merit, and is granted as to attorney fees language without leave to amend.  MP is to give notice.