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 to find out if all parties are submitting and then moving party is to telephone the clerk at (657)622-5213 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.

 

July 25, 2017

 

 

#

Case Name

Tentative

 

 

 

1

American Express Bank, FSB vs. Luzzi

 

13-689250

 

Motion to Set Aside/Vacate Dismissal

 

Ruling:  Off Calendar – no hearing will be held.  Motion for Order Vacating Dismissal and Entering Judgment:  The unopposed Motion for Order Vacating Dismissal and Entering Judgment brought by Plaintiff American Express Bank, FSB is GRANTED, pursuant to Code of Civil Procedure section 664.6.

 

The Court finds that it retained jurisdiction pursuant to this provision, upon the express consent by the parties.  Additionally, the Court finds a valid and enforceable settlement, which provides for the entry of Judgment. 

 

Thus, Judgment shall be entered in favor of Plaintiff, in the amount of $2,574.09, in addition to costs in the amount of $601.18.

 

MP is to give notice. 

 

2

Fedotov vs. Moussa

 

15-813581

 

(1-2) Motion to Be Relieved as Counsel of Record (3) Motion to Deem Facts Admitted

 

Tentative Ruling:  (1-2) The unopposed motions to be relieved as counsel by Knypstra Hermes LLP, counsel for Defendants Arthur Moussa and Equipmed USA, LLC, are GRANTED. 

 

Moving counsel has substantially complied with the requirements of CRC 3.1362.  Counsel served the clients by mail at the client’s last known addresses with copies of the motion papers and has confirmed within the past 30 days that the address is current by telephone.  Counsel represents that: (1) a conflict of interest has arisen between Defendants Arthur Moussa/Equipment USA LLC and counsel, which requires counsel to withdraw from representation of Defendants; (2) since the conflict has arisen the clients are no longer communicating with attorney; and (3) the clients have not paid past-due fees owed. 

 

Moving counsel is to give notice.

 

(3) Plaintiff Mike Fedotov’s motion to compel further responses from Defendant Arthur Moussa, individually and as agent of Equipmed, USA, LLC (“Defendant” or “Moussa”) as to Request for Admission (“RFA”), Set One, Nos. 7-10, Requests for Production of Documents (“RFPD”), Set One, Nos. 5-24, and Form Interrogatories (“Form DISC-001”), Set One, No. 17.1 (as to RFA Nos. 7-10) and Nos. 50.1-50.5, is GRANTED. 

 

Defendant’s responses are inadequate, incomplete, or evasive, and/or his objections are without merit or too general. 

 

The Court will hear from Defendant and his counsel as to the time needed for Defendant to retain new counsel and/or prepare the further responses. 

 

Plaintiff’s request for evidence and issue sanctions is denied.  Instead, reasonable monetary sanctions of $2,680.00 [10 hours at reasonably hourly rate of $250 + $180 filing fee] are imposed on Defendant and his counsel, payable within 30 days.

 

The Court notes Plaintiff improperly combined three different motions into one, and paid only one filing fee.  Thus, Plaintiff is ordered to pay additional filing fee of $120.00 before the matter is called to calendar.

 

Defendant is to give notice.

 

3

Flores vs. Danks

 

16-862403

 

Demurrer to Second Amended Complaint (sAC)

 

Ruling:  Off Calendar – no hearing will be held. Demurrer is continued to 9-5-17, Dept. C13, at 2 pm.  The parties have not met and conferred in compliance with Code of Civil Procedure section 430.41(a) which requires the meet and confer to be in person or telephonically. Demurrer to SAC is thus continued in order for the parties to properly meet and confer.  9 Court days prior to the continued hearing date, Defense counsel is to submit a Declaration establishing the meet and confer efforts and any results.

 

The Clerk is to give notice.

 

4

Hall vs. El Toro Medical Investors, LP

 

17-900538

 

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

 

Tentative Ruling: (1) Demurrer to Complaint:  The Demurrer to the Complaint is SUSTAINED, with 10 days leave to amend, as to the First COA (Elder Abuse).  The Demurrer is OVERRULED, as to the Second COA (Wrongful Death), as to all but Defendant Lorenzo.  As to Defendant Lorenzo, the Demurrer is SUSTAINED, as to both claims, with 10 days leave to amend.

 

As to the First COA (Elder Abuse), the Court takes judicial notice of the Declaration filed by Plaintiff Joyce Hall on February 6, 2017, pursuant to Evidence Code section 452(d).

 

As asserted by Defendants Code of Civil Procedure section 377.32(a) requires that any “person who seeks to commence an action or proceeding…as the decedent’s successor in interest…shall execute and file an affidavit…”  Relevant herein, this provision requires that “[a] certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (See Code Civ. Proc., §377.32(c).)

 

A review of the Declaration filed on February 6, 2017 confirms the decedent’s death certificate is not attached.   Thus, pursuant to section 377.32(a), Plaintiff Joyce Hall has failed to satisfy a condition precedent to standing, as the successor-in-interest of Damian Hall.

 

As a result, the Demurrer to the First COA is SUSTAINED, with 10 days leave, to correct this defect.

 

The Court otherwise finds sufficient allegations of “neglect,” pursuant to Welfare and Institutions Code section 15610.57. (See ¶15-¶18, ¶23, ¶24, ¶36 and ¶44 of Complaint; See also in Feinmore v. Regents of the University of California (2016) 245 Cal.App.4th 1339, 1350-1351 and Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.)

 

Additionally, as to the entity Defendants the Court finds sufficient allegations of alter ego liability and notes Defendants failed to cite to authority requiring greater specificity, as to this form of liability or otherwise demonstrating alter ego liability cannot be applied to claims for Elder Abuse. (See ¶25 of Complaint.)

 

As to Defendant Lorenzo, however, the Demurrer is SUSTAINED in its entirety, with 10 days leave to amend, as the basis of liability against this party is unclear.  

 

For example, it is unclear whether Plaintiffs intend to assert Mr. Lorenzo is an alter ego of the remaining Defendants.  From the briefs and pleading, it appears Plaintiffs are asserting liability based on Mr. Lorenzo’s position as the Administrator or employee of the nursing facility.  Notably, while Plaintiffs offer lengthy argument as to how Lorenzo (or the Administrator) ratified the alleged conduct at issue herein, no explanation or citation to authority is offered, which demonstrates Lorenzo can be personally held liable for Elder Abuse or Wrongful Death, based on his position.  

 

As to the Second COA (wrongful death), as to all but Defendant Lorenzo, the Demurrer is OVERRULED as the Court finds sufficient allegations of causation. (See ¶65 of Complaint).

 

(2) Motion to Strike brought by Defendant Lorenzo is MOOT.  The Motion to Strike, as brought by the remaining Defendants is DENIED.

 

The allegations included within the Complaint are sufficient to demonstrate “deliberate disregard of the high degree of probability that an injury will occur.” (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405; See also ¶15-¶17, ¶24 and ¶44 of Complaint.)

 

Plaintiffs allege Defendants “denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs…with knowledge that the injury was substantially certain to befall the elder…or with conscious disregard of the high probability of such injury.” (See Carter, supra, 198 Cal.App.4th at 407.)

 

Further, the Court in Feinmore v. Regents of the University of California (2016) 245 Cal.App.4th 1339 stated: “A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.” (Id. at 1350.)  

 

Here, Plaintiffs allege “DEFENDANTS conceived, implemented, and carried out a scheme to intentionally underfund and understaff their facility in order to decrease expenses and increase profits.” (See ¶44 of Complaint.)

 

Moreover, Plaintiffs allege “DEFENDANTS’ neglect was not a one-time mistake, but rather, HALL’s injuries are such that they could have only resulted from a pattern of neglect by the DEFENDANTS in failing to provide his basic care and comfort…” (See ¶24 of Complaint.)

 

Consequently, the above is sufficient to demonstrate a conscious disregard and, thus, support both attorney fees under Welfare and Institutions Code section 15657 and punitive damages pursuant to Civil Code section 3294(c).

 

Finally, Plaintiffs sufficiently allege the managing agents of the nursing home approved and ratified the deficient staffing which led to the decedent’s neglect, in order to maximize profit. (See ¶31 and ¶33 of Complaint; See also Civ. Code, §3294(b).)

 

5

 

Hoffman vs. Barnes  

 

14-713384

 

(1) Motion for Attorney Fees (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  Motion for Attorney Fees and CMC are continued to 8-29-17, Dept. C13, at 2 pm to allow MP to file supplemental declaration(s), and if necessary, a 2 page supplemental brief, establishing it is a party to the Escrow Agreement and how §21 applies to it and setting forth lodestar factors including time spent in defense of the lawsuit, identifying the attorneys who worked on the case, their experience, and billable rates. Supplemental Declarations and 2 page brief to be filed within 9 Court days of continued hearing date. Any response to be filed within 5 Court days of the continued hearing date.

 

MP is to give notice.

 

6

Karn vs. Select Portfolio Servicing, Inc.

 

16-872472

 

(1) Demurrer to First Amended Complaint (FAC) (2) CMC

 

Tentative Ruling: (1) Demurrer to FAC: The Demurrer to the FAC brought by Defendant Select Portfolio Servicing, Inc. is SUSTAINED, in its entirety, without leave to amend.

 

1st COA (Homeowners Bill of Rights- Civil Code §2923.6): Notably, Civil Code section 2923.6 applies only to mortgages or deeds of trust, as described in Civil Code section 2924.15. (See Civ. Code, §2923.6(j).)  Civil Code section 2924.15 “shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units.” (See Civ. Code, §2924.15(a).)  Further, “owner-occupied” means that the property is the principal residence of the borrower. (Id.)

 

Here, as asserted by Defendant, Plaintiff alleges only that he is the owner of the property and resides, generally, in Orange County.  (See ¶1 of FAC.)  This does not meet the pleading requirement of “owner occupied.”

 

Further, as Plaintiff was previously granted leave to amend to correct this defect, and failed to do so, the Court may fairly conclude that Plaintiff is unable to allege the property is owner occupied.  Thus, further leave to amend is denied.

 

As to the Second COA (Business & Professions Code §17200), Plaintiff failed to clearly allege damages, which would provide standing under this provision.  Standing to sue under the UCL is limited to any “person who has suffered injury in fact and has lost money or property” as a result of unfair competition. (See Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1554; See also Bus. & Prof. Code, §17204.)  Here, Plaintiff alleges Defendant failed to timely evaluate Plaintiff’s loan modification application and failed to provide written notice of the evaluation period, as required by certain federal regulations. (See ¶32-¶36 of FAC.) Thereafter, Plaintiff merely concludes he suffered injury in the form of “payment of increased interest, longer loan payoff times, higher principle balances and payment of other charges collected by Defendants.”  (See ¶37 of FAC.)   

 

Plaintiff fails to particularly allege a causal connection between these losses, and Defendant’s purported conduct.  “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619).

 

Once again, as Plaintiff was previously granted leave to amend, to address this issue and failed to do so, leave to amend is DENIED.

 

As to the Third and Fourth COAs (Intentional Misrepresentation/Negligent Misrepresentation), the Demurrer is SUSTAINED, without leave to amend.

 

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 230-231.)

 

To state a claim for Negligent Misrepresentation, a statement must have been made “without reasonable ground for believing it to be true.” (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.)

 

Here, at most, Plaintiff alleges that “[t]hroughout the review process, Defendant’s representatives informed Plaintiff that as long as he continued to provide the documents requested, the foreclosure sale would not occur.” (See ¶41 and ¶50 of FAC.)   Additionally, Plaintiff alleges that “Defendant orally represented to Plaintiff that the Subject Property would not be foreclosed while a loan modification was being reviewed.” (See ¶43 of FAC.)

 

Notably, Plaintiff alleges no facts which demonstrate the above statements were false. In particular, Plaintiff does not allege the property has been sold at foreclosure.  Additionally, in contrast, the allegations in the Complaint suggest the sale dates scheduled by Plaintiff did not proceed.

 

Consequently, the representations allegedly made appear true.

 

Last, the Demurrer to the Fifth COA (Promissory Estoppel) is SUSTAINED, without leave to amend. 

 

Here, Plaintiff alleges “SPS promised to review Plaintiff’s application in good faith.” (See ¶54 of FAC.)  Thereafter, Plaintiff asserts Defendant had no intent of doing so, as evidenced by the dual tracking. Additionally, Plaintiff alleges “SPS promised that once the application was complete SPS would not attempt to foreclose on his Home.” (See ¶56 of FAC.)

 

Similar to Plaintiff’s claims for fraud, the facts alleged suggest the foreclosure sales were postponed, such that Plaintiff has not alleged a breach of any promise.

 

Moreover, there are no clear allegations of damages.  At most, Plaintiff alleges he “could have explored the possibility of refinancing or marketing and selling the Subject Property or filed bankruptcy and reorganized…” (See ¶58 of FAC.)  However, absent an allegation the property has in fact been sold, the above fails to state damages, as Plaintiff continues to have these options.

 

Defendant’s Request for Judicial Notice is GRANTED.

 

7

Katke vs. Haefner

 

16-861910

 

(1) Motion to Compel Further Responses to Form Irogs (2) Motion to Compel Further Responses to Special Irogs (3) Motion to Compel Production (4) CMC

 

Ruling:  Off Calendar – no hearing will be held. Defendants’ three motions to compel further (Form Irogs, Special Irogs, RFPs (Sets 1), are continued to 9-5-17, Dept. C13, at 2 pm.  Lead counsel are ordered to meet and confer face to face regarding all the subject discovery. Should the parties fail to resolve any aspect of the  discovery dispute herein, the parties are ordered to file a Joint Statement of Items in Dispute nine (9) court days prior to the continued hearing date. Counsel must also submit supplemental declarations establishing the efforts taken to meet and confer. The Court is considering sanctions, and reserves the right to impose sanctions at the continued hearing date.

 

The Clerk is to give notice.

 

8

Lee vs. May  

 

17-928149

 

Motion for Preliminary Injunction

 

Tentative Ruling: Plaintiff Soon Yul Lee’s Motion for Preliminary Injunction is GRANTED as follows.

 

Plaintiff has sufficiently established that the balancing of harm lies in its favor and has sufficiently established a probability of prevailing on the merits of the claims alleged in the Complaint.

 

The issuance of the preliminary injunction is conditioned on Plaintiff first posting a bond in the amount of $62,000.00.

 

A preliminary injunction should issue as follows: Defendants Charles A. May, Susana B. May, and Assured Lender Services, Inc., their agents, officers, employees, and representatives, SHALL NOT, directly or indirectly, sell or attempt to sell, or cause to be sold, the real property known as 7300 East Calle Granada, Anaheim, CA 92808 under the power of sale contained in the short form deed of trust executed by Plaintiff in favor of Defendants Charles A. May and Susana B. May recorded on 5/30/1980 as Instrument No. 10098 in the Office of the Orange County Recorder pursuant to the Notice of Default and Election to Sell recorded on 4/5/17 as Instrument No. 2017 000137040 in the Office of the Orange County Recorder.

 

Moving Party is to give notice.

 

9

RNR Group, Inc vs. Klein

 

16-862912

 

(1) Motion to Deem Facts Admitted (3) OSC re Monetary Sanctions

 

Ruling:  Off Calendar – no hearing will be held. The Motion to Deem Requests for Admission brought by Plaintiffs Randy Morton and RNR Group, Inc. and the OSC re: Sanctions are CONTINUED to August 22, 2017, Dept. C13, at 2 pm.

 

MP is to give notice. 

 

 

10

Pars Publishing Corp vs. Ordway Corporation

 

15-826325

 

(1) Motion to Dismiss (2) CMC

 

Tentative Ruling:  Motion to Dismiss is denied. The Court finds the facts here to be similar to C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483. Here, there is no evidence of a signed Purchase Order; and thus it cannot form the basis of the contract. There is no other evidence the parties assented to the term of a forum selection clause.

 

RP is to give notice.

 

MGI claims Ordway signed the Purchase Order at issue and Ordway claims it did not sign it. Really, MGI’s entire argument is premised on a signed P.O. because if it was signed by Ordway, then this constitutes acceptance of MGI’s offer. However, there is no evidence of a signed P.O.

 

Paragraph 10 of the Declaration of Bruno (Sales Manager for MGI) filed 7-12 states:

 

“10.  MGI was not able to locate a signed copy of the Purchase Order but I am certain that Ordway did sign and return to MGI a copy of the Purchase Order because it is MGI’s standard practice to only process an order on receipt of the signed purchase order. Regardless, at all times, Ordway acted pursuant to and consistent with the Purchase Order, including purchasing the equipment and services listed in the Purchase Order.” 

 

The Declaration of Hemmen (Sales Person for Ordway) filed 7-12, however, states:

 

“5. I never signed the purchase order. To the best of my knowledge, no one signed the purchase order on behalf of PFS.

 

6. I did not discuss or agree to a forum-selection clause during my communications with MGI about the purchase of the JETVarnish 3D printer and iFoil product.”

 

There is no signed P.O. presently before the Court; and therefore it does not appear the P.O. can form the basis of the contract. Rather, it appears there was only an oral agreement between the parties and there is nothing about the unsigned P.O. or the relationship of the parties that manifest assent to the additional term of a forum selection clause. (See C9 Ventures, supra.) The Motion is therefore denied as MP has not sustained its burden to establish a contract exists between the parties wherein the parties agreed to a forum selection clause.

 

Evidentiary Objections filed by Ordway on 7-17:

 

Declaration of Michael Abergel:

SUSTAIN:  1, 3, 4

OVERRULE:  2, 5, 6

Supplemental Declaration of Steve Bruno:

SUSTAIN: 1, 2

OVERRULE: 3

 

11

Bateman, as Trustee vs. Susan Lintz, Trustee

 

16-882620

 

(1) Motion to Transfer to Complex (2) CMC

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  This motion will be heard in Department C14 before Judge Moss, and the parties will be notified of that hearing date.  The CMC will be rescheduled based on the outcome of that hearing. 

 

MP is to give notice.   

 

12

Pham vs. Jasmine Place

    

15-785549

 

(1) Motion to Strike (2) Demurrer to Complaint (3) Motion to Strike

 

Tentative Ruling:  (1) Defendant/Cross-Complainant Team Termite & Pest Control, Inc.’s Motion to Strike Portions of the Third Amended Complaint is DENIED.

 

The Court cannot find as a matter of law that the allegation in paragraph 49 that “Jessica…is more likely to have cancer in the future due to her exposure of toxic chemical left by Team Termite” is irrelevant. Plaintiffs contend in Opposition this allegation is supported by the medical opinion of Plaintiff Jessica’s doctors and relevant to their claim for damages.

 

Defendant’s request for judicial notice of Exhibit A is granted pursuant to Evidence Code sections 452(d).

 

Moving Party is to give notice.

 

(2) Defendant/Cross-Complainant Team Termite & Pest Control, Inc.’s Demurrer to the Third Amended is OVERRULED as follows.

 

The 5th COA (negligent infliction of emotional distress) is sufficiently pled for purposes of demurrer. “…a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress - a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal. 3d 644, 667–68.) Here, Plaintiffs are alleging they suffered negligent infliction of emotional distress based on the injury to their daughters. The elements of this cause of action are adequately pled in paragraphs 1-5, 38, 42, 46, 47, 48, 50, and 51.

 

Defendant’s request for judicial notice of Exhibits A through C is granted pursuant to Evidence Code sections 452(a) and (d).

 

Moving Party is to give notice.

 

(3) Defendant Terminix International Company’s Motion to Strike the Third Amended Complaint is DENIED as follows.

 

Here, Plaintiffs filed their SAC adding Defendant Team Termite to this action on 1-10-17; Defendant Team Termite filed tis Demurrer to the SAC on 2-14-17 with a hearing date of 3-21-17; and Plaintiffs filed their TAC on 3-8/-17, the date the Opposition to the Demurrer was to be filed. This is permissible pursuant to Code of Civil Procedure section 472. One defendant’s filing of an Answer does not divest a plaintiff of the right to amend the complaint with respect to the causes of action brought against other demurring defendants. (Barton v. Khan (2007) 157 Cal. App. 4th 1216, 1220–21.)

 

Moving Party is to give notice.

 

13

Roe 1 vs. Defendant Doe 1, Congregation

 

14-741722

 

(1) Motion – Other (2) Motion – Other (3) TSC

 

Tentative Ruling:  Defendants Doe 1, Congregation and Doe 2, Supervisory Organization’s Motion to File Documents Under Seal is GRANTED, without prejudice.

 

Sealing of Exhibits 8-18:   The court must weigh whether the right to privacy is an “overriding interest that overcomes the right of public access to the records.”  The sealing of these exhibits in their entirety is overbroad and is not narrowly tailored. 

 

The court finds that only information concerning the names of third-parties allegedly suffered from sexual abuse by Defendant Richard Urbanowicz, and the alleged specific acts of sexual assault (or potential sexual assault) by Richard Urbanowicz on third-parties, is subject to sealing.  

 

The court previously CONTINUED the hearing on this motion and ordered Defendants to file a redacted copy only redacting information concerning the names of third-parties who allegedly suffered from sexual abuse by Defendant Richard Urbanowicz, and the alleged specific acts of sexual assault (or potential sexual assault) by Richard Urbanowicz on third-parties.  (See, 3-7-17 and 4-18-17 Minute Orders.)

 

Defendants have filed redacted copies on 6-6-17 pursuant to the court’s orders.  Defendants’ Motion to Seal is GRANTED, without prejudice to Plaintiff later opposing a Motion to Seal should the same documents be submitted at trial, on a dispositive motion, or in another proceeding.

 

Separate Statements:  Defendants seek to seal: (1) Plaintiff Jose M.’s Separate Statement in Opposition to Defendant Doe 1’s MSJ; and (2) Plaintiff Rudy P.’s Separate Statement in Opposition to Defendant Doe 1’s MSJ.

 

The court previously CONTINUED the hearing on this motion and ordered Defendants to file a redacted copy only redacting information concerning the names of third-parties who allegedly suffered from sexual abuse by Defendant Richard Urbanowicz, and the alleged specific acts of sexual assault (or potential sexual assault) by Richard Urbanowicz on third-parties.  (See, 3-7-17 and 4-18-17 Minute Orders.)

 

Defendants have filed redacted copies on 6-6-17 pursuant to the court’s orders.  Defendants’ Motion to Seal is GRANTED, without prejudice to Plaintiff later opposing a Motion to Seal should the same documents be submitted at trial, on a dispositive motion, or in another proceeding.

 

Prevailing party is to give notice.

 

14

S.L. Contursi, Inc. Rare Coin Gallery vs. Coe

 

14-723816

Motion for Leave to Amend

 

Tentative Ruling:  Defendant and Cross-Complainant Eric Coe’s (“Coe”) Third Motion for Leave to file Second Amended Cross-Complaint is DENIED as follows.

 

The Motion is identical to the Motion filed by Coe on 10-27-16. It is dated 10-27-16, the Proof of Service is dated 10-17-16, and the declaration filed in support thereof is dated 10-18-16.

 

This Court previously found that the Motion filed on 10-27-16 failed to comply with CRC, Rule 3.1324. The Motion, again, fails to comply with CRC, Rule 3.1324(a) because it fails to identify what portions of the prior pleading are to be deleted and added by page, paragraph, and line number has any merit as required. 

 

The Motion also fails to satisfy subsection (b) because the declaration does not include facts as to “why” the amendment is proper, “when” the facts giving rise to the amendments were discovered, and “why” the Motion for leave to amend was not made earlier. The Court previously granted Coe with an opportunity to amend on 9-1-15, but Coe failed to timely do so; Coe failed to file a Motion for Leave until 5-5-16 and then that Motion was denied for failing to comply with the CRC on 8-12-16; Coe then filed his “second” Motion on 10-27-16 which was denied, again, on 2-14-17, for failing again to comply with the CRC; and then Coe filed this “third” Motion which is identical to the second Motion and which again fails to comply with the CRC.

 

The Court dismisses Coe’s Cross-Complaint pursuant to Code of Civil Procedure 581(f)(2).

 

Moving Party is to give notice.

 

15

Salino vs. Lake Forest Nursing Center

 

16-845893

(1) Demurrer to Second Amended Complaint (SAC) (2) CMC

 

Tentative Ruling:  Defendants Lake Forrest Nursing Center; Life Care Affiliates II; Forrest Preston Life Care Centers of America, Inc.; and El Toro Medical Investors Limited Partnership’s Demurrer to the 1st COA (negligence) alleged in the SAC is OVERRULED as follows.

 

As to the 1st COA, the Court cannot find as a matter of law that Plaintiff’s claim is one for professional negligence subject to the one year statute of limitation set forth in Code of Civil Procedure section 340.5.

 

 Here, although the SAC alleges LFNC is “engaged in the business or providing skilled nursing services”; “custodial care to the elderly and disabled” and was provided “skilled nursing care, physical therapy, and other rehabilitative services,” it also alleges that DOE 1 is a “handyman at LFNC” and his duties “did not include providing healthcare or medical services to the residents of LFNC”. (See SAC. ¶¶ 2, 6 and 10.) The “negligent” act is alleged to have been committed by DOE 1 in paragraph 12 after he was discharged. As such, the allegations of negligence are not against a “health care provider” since DOE 1 is only a handyman. Accordingly, the 1 year SOL of Code of Civil Procedure section 340.5 would not apply.

 

The cases relied upon by Defendants are distinguishable because in this case Plaintiff was discharged and then wheeled out. In Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the plaintiff was injured when one of the rails of her hospital bed collapsed—the plaintiff was still a patient of the hospital’s at the time of injury. Likewise, in Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, the patient was injured when being transferred on a gurney and was still a patient at the time of his injury.

 

Here, unlike in Flores and Nava, the SAC alleges Plaintiff was discharged—thus, no longer a patient—and then injured while being wheeled out by Doe 1, the handyman. (SAC, ¶ 12.)

 

As to the “sham doctrine” issue, Defendant may rely on the omitted allegations if and when it files a Motion for Summary Judgment or at trial to argue that this action is one for professional negligence subject to the statute of limitations set forth in Code of Civil Procedure section 340.5. Here, Plaintiff’s counsel did file a declaration as to why the original allegations of paragraphs 11 and 12 of the Complaint were omitted. Counsel states, although true, they were omitted because they are irrelevant to respondeat superior liability of the nursing home defendants or Doe 1’s liability for his own negligent wheelchair assistance; and that the omitted allegations do not contradict any facts alleged in the amended complaints; and that Plaintiff’s theory of liability against the nursing home owners/managers is based on the same general facts contained in the original complaint. (See ¶¶ 4 and 5 of C. Hennes.)

 

The law is not as unequivocal as Defendant contends. Flores v. Presbyterian Intercommunity Hosp. (2016) 63 Cal. 4th 75 only held that “whether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of the relationship between the equipment or premises in question and the provision of medical care to the plaintiff.” (Id. at 88.)  “… the special statute of limitations for professional negligence actions against health care providers applies only to actions alleging injury suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.” (Id.) The Court cannot find as a matter of law that Plaintiff’s claim is subject to the 1-year SOL based on the allegations in the original Complaint which were omitted in the SAC.  

 

Moving party is to give notice.

 

16

Tanous vs. Nationstar Mortgage, LLC

 

15-810754

 

 

(1) Motion for Leave to Amend Complaint (2) OSC re Preliminary Injunction (3) CMC

 

Tentative Ruling:  (1) Plaintiff Peggy Tanous’ Motion for Leave to File a First Amended Complaint is GRANTED.  The court orders Plaintiff to file and serve the First Amended Complaint by 7-28-17.

 

Prevailing party is to give notice.

 

Defendant contends Plaintiff’s proposed First Amended Complaint is futile in that the new COAs plead insufficient facts against Defendant.  The court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend.  Grounds for a demurrer or a motion to strike are premature at this time.  After leave to amend is granted, Defendant will have an opportunity to attack the amended pleading. (See, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-E [The Rutter Group] at 6:644.) 

 

In addition, Defendant contends the moving papers are procedurally improper as there is no compliance with CRC 3.1324.  Indeed, the moving papers fail to:

 

·         “State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located” (CRC 3.1324(a)(2));

·         State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located” (CRC 3.1324(a)(3));

·         Include a declaration that specifies “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC 3.1324(b).) 

 

Although Defendant notes this procedural defect, the court, to move this case along, will exercise its discretion and consider this motion even with the procedural defect because counsel’s declaration and a copy of the proposed First Amended Complaint are attached to the moving papers.

 

Further, denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party is shown.  Here, there does not appear to be any undue prejudice to Defendant in granting leave to amend.  A trial date has not been set, and Defendant has ample time to attack the new pleading and to conduct discovery.  Further, any cost to Defendant (i.e., attorney fees and costs) to litigate the proposed new causes of action do not appear to be undue.  Finally, the fact that Plaintiff has purportedly not made any loan payments in 8.5 years is not supported by any admissible evidence and is not an “undue burden” as a result of this court’s granting of leave to amend the complaint. 

 

(2) Plaintiff Peggy Tanous’ Application for Preliminary Injunction is GRANTED.

 

Plaintiff has sufficiently established that the balancing of harm lies in her favor.  In addition, Plaintiff has sufficiently established a probability of prevailing on the merits on the dual tracking claim (Civ. Code, § 2923.6(c)(1)). The issuance of the preliminary injunction is conditioned on Plaintiff first posting a bond in the amount of $35,000.00. 

 

Prevailing party is to give notice.

 

The balancing of harm lies in Plaintiff’s favor: 

 

Code of Civil Procedure section 526(a) provides in pertinent part: “(a) An injunction may be granted in the following cases: … (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. … (4) When pecuniary compensation would not afford adequate relief.”

 

The burden is on plaintiff to show all elements necessary to support issuance of the injunction.  (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)  “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.   (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749; TRG, CIVP, 9:527-9:528.)  The court employs a more probable than not standard.  (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)

 

Here, the balancing of the harm falls in Plaintiff’s favor (losing a home is more harmful than the bank losing money on a bad loan).  Real property is generally considered to be “unique” such that injury or loss cannot be compensated in damages, and injunctive relief is therefore generally granted.  (See Civ. Code, §3387; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017), 9(II)-A, “Provisional Remedies,” section 9:523.) 

 

Plaintiff has sufficiently established a probability of prevailing on the merits:

 

Plaintiff has sufficiently established a probability of prevailing on the merits as to the 1st COA for Civil Code § 2923.6(c) claim:   Civil Code section 2923.6(c)(1) provides: “If a borrower submits  complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.  A mortgage servicer, mortgagee, trustee, beneficiary or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs: [¶] (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired.” 

 

Plaintiff’s verified Complaint provides that she prepared and submitted a complete loan modification in 2014.  Plaintiff did not receive a formal written determination as to the status of the loan modification application, and Defendants improperly recorded a Notice of Default on May 27, 2015. (Verified Complaint, at ¶¶ 17, 19, 25-26 and Exhibit C.)   Plaintiff contends that she received notice of the denial of the loan modification after the recording of the Notice of Default. (Verified Complaint, at ¶ 29.) 

 

Defendant contends in the opposition papers that it has substantially cured any defect by engaging in loss mitigation efforts and reviewing Plaintiff’s subsequent application for a loan modification in good faith.  Civil Code section 2924.12(a) provides for injunctive relief to enjoin a material violation of HBOR.  Section 2924.12(c) provides that a mortgage servicer shall not be liable for any violation that it has corrected and remedied prior to the recordation of a trustee’s deed upon sale.  Although Defendant has engaged in a good faith evaluation of Plaintiff’s loan modification on or about 11-4-16 and 12-15-16 (Decl. of Al Loll, at ¶¶ 5 and 7, Exhibits A and B), this does not necessarily establish Defendant has substantially “corrected and remedied” the 2923.6 violation prior to the recording of the Trustee’s Deed Upon Sale.  For example, it is questionable whether Defendant must rescind the Notice of Default recorded on May 27, 2015 and record a new Notice of Default in order to substantially cure the 2923.6 violation. 

 

For purposes of a preliminary injunction, the court finds Plaintiff has sufficiently established a probability of prevailing on the dual tracking claim because the Notice of Default was recorded while a complete loan modification application was pending.  Plaintiff has therefore sufficiently established a probability of prevailing on the merits as to the Civil Code section 2923.6 claim.

 

Plaintiff has failed to sufficiently establish a probability of prevailing on the merits as to the 2nd COA for Civil Code § 2923.6(f) claim:  Civil Code section 2923.6(f) provides that following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including specific information outlined in subsection (f).

 

Plaintiff’s verified Complaint provides that the denial letter merely stated that Plaintiff’s application had been denied, and failed to include data tables to explain how the calculation was determined and why the application was denied on the basis of a net value calculation. (Verified Complaint, at ¶ 29.)  The moving papers fails to include any additional evidence in support of this COA.

 

In the opposition papers, Defendant provides a copy of the 11-4-16 loan modification denial letter. (Decl. of Al Loll, at ¶ 5, Exhibit A.)  The denial letter specifically states Plaintiff’s loan modification was denied because of a negative net present value, and includes the monthly gross income and property value used to calculate the net present value as required by Civil Code section 2923.6(f)(3) [“If the denial is the result of a net present value calculation, the monthly gross income and property value used to calculate the net present value and a statement that the borrower may obtain all of the inputs used in the net present value calculation upon written request to the mortgage servicer.”].

 

Thus, Plaintiff has failed to sufficiently establish a probability of prevailing on the section 2923.6(f) claim.

 

Plaintiff has failed to sufficiently establish that she is entitled to injunctive relief for the 3rd COA for Civil Code § 2924 et seq. claim:   The Verified Complaint states Defendant has failed to post a copy of the Notice of Trustee’s Sale on Plaintiff’s property pursuant to Civil Code section 2924f, and has failed to serve Plaintiff with a copy of the Notice of Trustee’s Sale by certified mail, and has failed to serve Plaintiff with a notice pursuant to Civil Code section 2924.8(a). (Verified Complaint, at ¶¶ 34-36.)  The moving papers fails to include any additional evidence in support of this COA.

 

Civil Code section 2924b(c)(3) provides that at least 20 days before the date of sale, the mortgagee, trustee or other authorized person shall send by registered or certified mail with postage prepaid containing a copy of the notice of sale to each person to whom a copy of the notice of default is to be mailed.

 

Section 2924f(a)(3) provides: “A copy of the notice of sale shall also be posted in a conspicuous place on the property to be sold at least 20 days before the date of sale, where possible and where not restricted for any reason.  If the property is a single-family residence the posting shall be on a door of the residence, but, if not possible or restricted, the notice shall be posted in a conspicuous place on the property….”

 

Section 2924.8(a)(1) provides: “Upon posting a notice of sale…, the trustee or authorized agent … shall send by first-class mail in an envelope addressed to the ‘Resident of property subject to foreclosure sale’ the following notice…: [¶] Foreclosure process has begun on this property, which may affect your right to continue to live in this property. Twenty days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a 90-day eviction notice. You may have a right to stay in your home for longer than 90 days. If you have a fixed-term lease, the new owner must honor the lease unless the new owner will occupy the property as a primary residence or in other limited circumstances. Also, in some cases and in some cities with a “just cause for eviction” law, you may not have to move at all. All rights and obligations under your lease or tenancy, including your obligation to pay rent, will continue after the foreclosure sale. You may wish to contact a lawyer or your local legal aid office or housing counseling agency to discuss any rights you may have.”

 

Indeed, Defendant correctly contends that even assuming the above violations have occurred, Plaintiff has failed to cite to any authority showing that she is entitled to injunctive relief.  Civil Code section 2924.12(a)(1) allowing for injunctive relief is only limited to a material violation of sections 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11 or 2924.17.  Thus, Plaintiff cannot obtain injunctive relief for violations of 2924b, 2924f, and 2924.8 pursuant to 2924.12. 

 

It appears, based on the Court’s independent research, that any relief for procedural irregularity under Civil Code section 2924 et seq. (i.e., setting aside the foreclosure sale) appears to be where there is a material violation that resulted in actual injury to the borrowers. (See, Knapp v. Doherty (2004) 123 Cal.App.4th 76, 94; Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 996.)  Slight procedural irregularity that does not result in actual injury to the borrowers does not appear to be actionable. (Id.)  Here, Plaintiff has failed to sufficiently establish actual injury as a result of these procedural violations.  Therefore, Plaintiff has failed to sufficiently establish that she is entitled to injunctive relief for the 3rd COA for Civil Code section 2924 et seq. claim.

 

Plaintiff’s 4th COA for Injunctive Relief Pursuant to Civil Code § 2924.12 is a Remedy and is not an Independent COA:  As discussed above, Plaintiff is entitled to injunctive relief pursuant to Civil Code section 2924.12 for the 1st COA for Violation of Civil Code section 2923.6(c).

 

Plaintiff has failed to sufficiently establish a probability of prevailing on the merits as to the 5th COA for Violation of Bus. & Prof. Code § 17200:   The Verified Complaint states that based on the above, Plaintiff has sufficiently established unfair, unlawful, or fraudulent business acts or practices. (Verified Complaint, at ¶¶ 42-43.)

 

The court finds Plaintiff has failed to sufficiently establish a probability of prevailing on the merits as to the Business and Professions Code section 17200 COA because she has failed to submit sufficient evidence showing that she has standing to sue.

 

For a plaintiff to bring a claim for unfair competition, plaintiff must have suffered injury in fact and have lost money or property as a result of the unfair competition. (Bus. & Prof. Code § 17204.) “To satisfy the narrower standing requirements imposed by Proposition 64, a party must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 [120 Cal.Rptr.3d 741, 885].)

 

Some of the ways in which “economic injury from unfair competition may be shown are as follows: a plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.” (Kwikset Corp., 120 Cal.Rptr.3d at 751.)  “Neither the text of Proposition 64 nor the ballot arguments in support of it purport to define or limit the concept of “lost money or property,” nor can or need we supply an exhaustive list of the ways in which unfair competition may cause economic harm. It suffices to say that, in sharp contrast to the state of the law before passage of Proposition 64, a private plaintiff filing suit now must establish that he or she has personally suffered such harm.” (Id.)

 

Here, the only damages claimed by Plaintiff are “back dues and interest…, the loss of a permanent modification, the loss of the opportunity to pursue other foreclosure prevention options, the cost and expense of the instant pending litigation, the possible permanent loss of his home to a foreclosure sale and other actual and consequential damages that will be proven on date of trial.” (Verified Complaint, at ¶¶ 26, 30, 36.) 

 

Plaintiff has failed to provide sufficient evidence showing that the damages sustained was caused by the purported unfair business practices.

 

With respect to Plaintiffs’ contention that she sustained arrearages, interest, and fees, these damages are not the result of any unfair business practices by Defendant, but are the result of Plaintiffs’ obligations to make payments pursuant to the terms of the loan and are the result of Plaintiffs defaulting on the loan. (See, Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 79; see also, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 523 [disapproved of by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919 on other grounds].) 

 

In addition, any foreclosure sale is insufficient to satisfy the injury requirement because the causal connection is Plaintiff defaulting on his loan rather than any unfair business practice. (Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th at 82; see also, Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 523 [disapproved on other grounds by Yvanova, supra, 62 Cal.4th 919.)   

 

Further, Plaintiff is not entitled to a permanent loan modification.  Further, there is no evidence showing that Defendant’s conduct caused Plaintiff to forgo alternative foreclosure prevention options.  Finally, attorney fees and costs in association with the litigation of the Business and Professions Code section 17200 claim would render the “standing to sue” requirement superfluous because all lawsuits would render Plaintiff “standing to sue.”

 

Conclusion:  Plaintiff has sufficiently established a probably of prevailing on the merits on the 2923.6 claim, that the balancing of harm lies in her favor, and that the court grants injunctive relief. 

 

Plaintiff has failed to sufficiently establish a probability of prevailing on the merits, or ability to obtain injunctive relief, for the other COAs.

 

BOND: 

A bond is required upon granting a preliminary injunction.  (Code Civ. Proc., §529.)  Because the bond requirement is mandatory, defendant's failure to request a bond does not waive the requirement.  (Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10.)  A court may issue a preliminary injunction upon conditions that protect all – including the public – whose interests the injunction may affect.  But to be valid, such conditions must relate directly to the interests sought to be protected.  (County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 100.)  In foreclosure actions, the common conditions are payment of amounts not in dispute, continuing payments during litigation, keeping prior liens out of default, paying taxes and insurance, and waiving any claim that accepting payments pursuant to the conditions waives the default.  (See Weil & Brown, supra, at ¶ 9:674.)

 

Future HOA payments (if any), interest, and attorney fees would be damages associated with the issuance of this injunction.  A reasonable sum as to such damages during the pendency of this action would be $35,000.00.  Thus, the issuance of any preliminary injunction in favor of Plaintiff is conditioned on them first posting a bond in the amount of $35,000.00. 

 

MP is to give notice.