TENTATIVE RULINGS FOR DEPARTMENT C-8

 

Honorable Kirk H. Nakamura

 

February 2, 2012

 

Law and Motion is usually heard in Department C-8 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling.

 

The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible.

 

The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657) 622-5208. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’s signature, if appropriate under CRC 3.1312.

 

 

 

 

 

 

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Tentative

 

 

 

1

Najera v. OCTA

Motion to Compel Production: GRANTED; 20 days to produce  

 

Defendant has the burden of supporting the attorney-client privilege objection.  Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.  It must show that the dominant purpose in preparing the Reports was for confidential transmittal to an attorney in anticipation of possible litigation.  D.I. Chadbourne Inc. v. Superior Court (1964) 60 Cal.2d 723, 737.  None of the evidence provided by Defendant even mentions an attorney, must less proves that the dominant purpose in preparing the reports was for transmission to one. 

 

Defendant presents no evidence regarding the purpose of the Occurrence Report.  The Coach Operator Handbook shows that the Risk Management Report is prepared in anticipation of a “claim” but this need not apply to a claim leading to litigation; it could equally apply to an insurance claim or a claim.

 

Moving party to give notice.

2

Hernandez v. Noble Ale Works, Inc.

The Motions to Compel Responses to the Requests for Production (First Set) and Special Interrogatories (First Set): GRANT  

 

Within fifteen (15) days, Defendants shall respond without objection.  Within fifteen (15) days, Defendants shall pay sanctions in the sum of $980.00 [($300 per hour x 3 hours) + $80.00 filing fees.]

 

The Motion to Compel Responses to Form Interrogatories (Set Two): DENY 

 

Plaintiff’s remedy would be to move to compel further responses.  The failure to compel further responses timely waives any right to compel a further response. Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494.

 

The court will require a meet and confer before considering any such motion. Moreover, the court cannot determine the validity of the claims as to interrogatory 17.1 without the accompanying request for admissions.

 

Plaintiff to give notice.

 

 

3

Griffin v. West Coast Life Ins. Co.

Motion to Compel Arbitration: OFF CALENDAR

 

4

Alvarenga v. Colton Capital Corp.

Motion to Compel Arbitration: GRANT

 

Perry v. Thomas (1987) 482 US 483 held that the Federal Arbitration Act preempted §229 and permitted arbitration of wage claims.  The Court finds the arbitration agreement enforceable.  There is no competent showing that Plaintiff was unable to understand and agree to the Agreement.  It was sent to him and he had the opportunity to read it; if he didn’t understand it, he could have had it translated for him.  There is no declaration from the Plaintiff testifying that he did not understand what he was signing.

 

While Plaintiff was not provided a copy of the AAA rules, he was informed of at least some of the terms; the agreement met the requirements of Armendariz v. Foundation Health Psychcare Services Inc. (2000) 24 Cal.4th 83.  There is no showing that any of the AAA Rules adversely affect the Plaintiff.  Therefore, procedural unconscionability from this is slight.  There must be considerable substantive unconscionability to invalidate the Agreement.  Armendariz, 24 Cal.4th @ 114.

 

The failure to state that “we” agree to the Agreement is no defect as both Plaintiff and the Employer stated that “I” agree to it.  Neither would have been able to affirm the agreement of the other.  The court interprets “final and binding” to mean only that there is no right to review the substantive terms of the award.  There is no evidence of an intent to abrogate CCP §1986.2.  The Court interprets the provision allowing the arbitrator to choose remedies that are just and equitable to mean that the arbitrator cannot make awards that are not permitted under the statutes that are being enforced; this would not be just.  There is no evidence that the provision regarding attorney fees for enforcement would have a chilling effect on Plaintiff.

 

Moving party to give notice.

 

 

5

Patel v. City of Garden Grove

Petition for Writ: OFF CALENDAR

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

Bluestone CA, LLC v. Mazzotta.

Motion to (1) Deposit Funds with Court (2) Exonerate Surety (3) Attorneys Fees: GRANT but with reduction in fees.

 

Western Surety Company’s Motion to Deposit Funds with the Court, for Exoneration of Surety, and for an Award of Attorney’s Fees and Costs is granted. 

 

However, the Court reduces the attorney’s fees sought to $10,631.70.  Costs of $870.00 are also awarded, for a total award of $11,501.70.  The remaining amount of the Bond is $49,480.00.  Western Surety is ordered to deposit $37,978.30 ($49,480.00 - $11,501.70) with the Court within 5 court days. 

 

Moving party to give notice.

7

Thompson v. Magnolia Hi Fi, Inc.

Demurrer to First Amended Complaint:  OVERRULE; 20 days to answer

 

Third Cause of Action: Fraud-Suppression of Facts:

 

The general rule is that even if material facts were known to one party and not the other, the failure to disclose the facts is usually not actionable fraud absent a fiduciary relationship giving rise to a duty to disclose. Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1499.  A statutory duty may also establish a duty to disclose, sufficient to support a claim of Fraud. Id.

 

In the absence of a fiduciary or confidential relationship, a duty to disclose arises at common law if facts are known only to the Defendant and the Defendant knows that the Plaintiff does not know or cannot reasonably discover the undisclosed facts. Karoutas v. HomeFed Bank (1991) 232 Cal.App.3d 767, 771.

 

In this instance, Plaintiffs have sufficiently alleged an inability to determine the experience of “Chris” and “Dave.”  Further, Plaintiffs have alleged sufficient facts to demonstrate Defendants’ knowledge of this inability (i.e. Defendants, by failing to disclose the individuals who would conduct the installation, necessarily knew that Plaintiffs could not discover any information about them.) (¶22A of FAC). Thus, Plaintiffs have pled sufficient facts to support a common law duty to disclose.

 

Seventh Cause of Action: Violation of C.C.P. §1029.8:

 

C.C.P. §1029.8 provides the following:

 

(a) Any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required…shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court may, in its discretion, award all costs and attorney's fees to the injured person if that person prevails in the action.

 

(b) This section shall not be construed to confer an additional cause of action or to affect or limit any other remedy, including, but not limited to, a claim for exemplary damages.

 

Additionally, pursuant to C.C.P. §1029.8(d):

 

For the purposes of this section, the term “unlicensed person” shall not apply to any of the following:

 

(1) Any person, partnership, corporation, or other entity providing goods or services under the good faith belief that they are properly licensed and acting within the proper scope of that licensure.

 

(2) Any person, partnership, corporation, or other entity whose license has expired for nonpayment of license renewal fees, but who is eligible to renew that license without the necessity of applying and qualifying for an original license.

 

In this case, Plaintiffs have adequately alleged Defendants, with full knowledge of their actions, exceeded the scope of their contractor’s license by drilling into the ceiling truss in Plaintiffs home. (¶40 of the FAC).  Plaintiffs, therefore, allege that Defendants were unlicensed, with respect to the specific work performed.

 

While Defendants assert this claim fails, as judicially noticeable documents demonstrate Defendants held a C-7 contractor’s license, these assertions fail to defeat Plaintiffs’ claim, as Plaintiffs specifically allege that the work performed exceeded the scope of the license held by Defendants.

 

Thus, Plaintiffs have adequately alleged a violation of C.C.P. §1029.8.

 

Plaintiff to give notice.

 

 

Motion to Strike: GRANTED in part and DENIED in part.

 

Punitive Damages:

 

Plaintiffs allege that, following discovery, Plaintiffs will be able to demonstrate the fraudulent conduct engaged in by Defendants’ employees was authorized and ratified by Defendants. 

 

As Plaintiffs appear to concede that, as of now, they cannot allege facts to support a claim for punitive damages against Defendants, this request should be stricken.

 

In the event discovery reveals the necessary factual allegations, Plaintiffs may bring a Motion for Leave to Amend.

 

Attorney’s Fees:

 

Per C.C.P. §1021, except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys is left to the agreement of the parties.  Further, C.C.P. §1033.5(a)(10) provides that attorneys’ fees are “allowable as costs under Section 1032” when they are authorized by either contract, statute, or law.

 

In this case, Plaintiffs seek attorney’s fees pursuant to C.C.P. §1029.8. 

 

For the reasons discussed in the accompanying Demurrer, Plaintiffs have sufficiently alleged a claim for violation of C.C.P. §1029.8 and, thus, are entitled to attorney’s fees pursuant to this provision.

 

Plaintiff to give notice.

 

 

Motion for Leave to Amend: DENY

 

Plaintiffs’ request for attorney’s fees, under Business & Professions Code §7160, is improper.

 

On October 20, 2011, the Court granted Defendants’ Motion to Strike, with 14 days leave to amend, indicating the following:

 

“Plaintiffs have failed to allege work that constitutes a ‘home improvement’ for purposes of Business & Professions Code §7160, as Plaintiffs allege, only, the installation of an HDMI cable. Additionally, Plaintiffs have failed to demonstrate the application of C.C.P. §1029.8, given that judicially noticeable documents demonstrate Defendant holds a Contractor's License.”

 

Thus, the Court previously ruled that Business & Professions Code §7160 did not apply.  Plaintiffs’ Motion for Leave to Amend, to include a request under this provision, fails to adequately address this Court’s concern. Plaintiffs’ have not established that the installation of an HDMI cable constitutes a “home improvement” and have not indicated any additional allegations, upon which they seek to base this request.

 

Thus, it does not appear that such an amendment is in “the furtherance of justice,” as required by C.C.P. §473, and the instant motion is denied.

 

Defendant to give notice.

 

 

 

8

Candan v. Washington Mutual Bank

 Demurrer to Amended Complaint: See below

 

 Request for Judicial Notice: DENY

 

Judicial notice cannot be taken of the truth of the facts stated in documents subject to judicial notice.  Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.  The subject documents  have no other relevance.

 

The demurrer to the entire complaint for lack of standing is OVERRULED.  The 3rd cause of action for wrongful foreclosure alleges tender.

 

The demurrer to the 2nd cause of action for fraud is SUSTAINED with leave to amend.  Plaintiff has not alleged that the loan representative was authorized to speak for Defendant.  In addition, Plaintiff has failed to allege that reliance caused him any injury.  Making reduced loan payments was not injury unless Plaintiff was willing and able to make regular payments but was induced to go into default by the Defendant.

 

The demurrer to the 3rd cause of action for wrongful foreclosure is OVERRULED.  A case is not authority for matters not considered by the court.  Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127.  Munger v. Moore (1980) 11 Cal.App.3d 1 did not involve a defect in notice of default and therefore did not address whether a cause of action for wrongful foreclosure could be based on such a defect.  Munger establishes that a cause of action for wrongful foreclosure exists.  (Id. @ 7.)

 

“Foreclosure” includes issuing notice of default.  See Moeller v. Lien (1994) 25 Cal.App.4th 822, 834, and  Homestead Sav. v. Darmiento (1991) 230 Cal.App.3d 424, 433.  The Court sees no reason that the cause of action can only be based on a completed sale.

 

The demurrer to the 4th cause of action for unfair business practices is SUSTAINED with leave to amend.  Plaintiff has not alleged damages, i.e., what his “costs and expenses” were or how they were due to the foreclosure. 

 

The demurrer to the 5th cause of action for intentional interference with emotional distress is SUSTAINED with leave to amend.  Nothing outrageous is alleged.  Failure to give Plaintiff a permanent modification is not outrageous because there is no right to a modification under California law.  Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 222-223.  Therefore, terminating his trial modification was not outrageous.  Nor are minor defects in notice of default.  Unless Plaintiff can properly plead his cause of action for fraud, this cause of action will fail.

 

The demurrer to the 6th cause of action for promissory estoppel is SUSTAINED with leave to amend. An element of that cause of action is that the Plaintiff must have been injured by his reliance on the promise.  As with the fraud cause of action, injury due to reliance is not sufficiently alleged.

 

20 days to amend.  Defendant to give notice.

 

9

Chavarria v. Co. of Orange

Demurrer to First Amended Petition: CONTINUED to 2/16/12

 

 

10

Upadhayay v. JP Morgan Chase

OSC re: Preliminary Injunction: OFF CALENDAR

11

Song v. Wells Fargo Bank.

OSC re: Preliminary Injunction: CONTINUED to 2/23/12

12

 

Chase Investment Service Corp. v. Hajar

OSC re: Preliminary Injunction: GRANT with limitations on the order to apply to clients that have not been contacted.

 

Plaintiff has shown that confidential customer lists have been misappropriated by the defendant, but has not shown that defendant has used the lists in an inappropriate manner, i.e. client solicitation. An individual may announce a change of employment, even to clients on a protected trade secret list. Reeves v. Hanlon (2004) 33 Cal.4th 1140.

 

According to the declaration of defendant Hajar, only approximately 60 clients have been contacted. Defendant  Hajar is to provide the list of 60 clients to plaintiff and is ordered not to contact any other clients of plaintiff or to solicit business from any clients on the list other than to announce a change in employment. To the extent that prior clients have approached defendant to move their business to defendant, defendant may continue dealing with such clients.

 

Moving party to give notice.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13

Zandi v. Briggs & Alexander

Motion for Leave for File Special Motion to Strike: DENY

 

The privilege issues were apparent from the time the 1st Amended Complaint was filed, as Defendant’s attorney admits.  There is no explanation for delay in filing the motion.  The purpose of CCP §425.16 is to encourage prompt resolution of frivolous claims.  Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681.  This goal is not met in this case where there has already been substantial discovery and trial is only six months away.

 

 

Special Motion to Strike: MOOT

 

Plaintiff to give notice.

 

14

 

Kleinman v. Brookhurst Auto Spa, LLC

 

Motion for Summary Adjudication: GRANTED in part and DENIED in part.

 

Plaintiff’s Motion for Summary Adjudication, as to the First Cause of Action, against Defendants Brookhurst Auto Spa, LLC and Aaron Rosen: GRANT

 

Plaintiff’s Motion for Summary Adjudication, as to the Second Cause of Action, against Defendants Brookhurst Auto Spa, LLC and Aaron Rosen: GRANT

 

Plaintiff’s request for Summary Adjudication, with respect to the Second Cause of Action, against Defendant Alex Lavitt: DENY

 

Plaintiff’s Objections to the Declaration of Alex Lavitt, Numbers 1 – 21: OVERRULED

 

First Cause of Action: Breach of Contract:

 

A claim for breach of contract must demonstrate the following: (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damages to plaintiff therefrom. Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913. 

 

Exhibit “F” of the Kleinman Declaration, demonstrates that Plaintiff, Ilya Kleinman, entered into a Promissory Note with Defendants, Brookhurst Auto Spa, LLC and Aaron Rosen, for the “principal sum of Nine Hundred Thousand and 00/100 Dollars ($900,000), together with interests thereon…”

 

The Agreement provides, additionally, that:

 

“Upon payoff of the Brookhurst Carwash, LLC Note, the principal amount of this Note shall be reduced in an amount equal to one half of the payoff of the Brookhurst Carwash, LLC Note (approximately $250,000) leaving a principal balance under this Note of approximately $650,000.”

 

Further, the Declaration of Plaintiff Ilya Kleinman demonstrates the following:

 

  • “According to the terms of the Promissory Note of Auto Spa and Rosen to me, the principal amount would be reduced to $650,000.00 instead of $900,000.00 upon payoff of the Promissory Note to Car Wash, which was in the sum of $475,000.000; one-half was to be paid by Rosen and/or Brookhurst. The principal obligation of the Promissory Note owed to Car Wash in the sum amount of $475,000.00 was never paid in full. Therefore, the obligation under the Promissory Note from Auto Spa and Rosen to me is in the amount of $900,000.00.” (¶13 of Dec.)
  • “Neither Rosen nor Auto Spa made any interest nor principal payments to [Kleinman] under the Promissory Note from October 1, 2009 to the present.” (¶17 of Dec.)
  • $900,000 in principal and $108,300 in interest (calculated through to February 2, 2012)  is currently owing. (¶18 of Dec.).

 

Finally, Plaintiff declares that he executed a Sales Agreement, in conjunction with the Promissory Note. (¶11 of Dec.).

 

Thus, Plaintiff has presented evidence establishing the existence of a contract, Plaintiff’s performance under the agreement, and Defendants’ breach.  Additionally, Defendants do not dispute, or present contrary evidence, with respect to these elements.

 

A disagreement arises, however, regarding the amount of damages currently owed.  Defendants’ assert that, pursuant to the agreement, the principal owing is $650,000, not $900,000, due to a $250,000 reduction provided for within the Promissory Note.

 

The Promissory Note makes clear, however, that the referenced reduction occurs only, “[u]pon payoff of the Brookhurst Carwash, LLC Note.”  As Plaintiff has submitted a declaration, indicating that this payoff has not occurred, Plaintiff has submitted evidence demonstrating the amount of damages is “$900,000,” in addition to interest.

 

Further, as Defendants’ have failed to present any contrary evidence, demonstrating that the “Car Wash Note” was paid in full, thus triggering the reduction in principal outlined within the agreement, Defendants have failed to establish a triable issue of material fact.

 

Second Cause of Action: Money Lent:

 

Pursuant to Corporations Code §16306(a) all partners are liable jointly and severally for all obligations of the partnership, unless otherwise agreed to by the claimant or provided by law.

 

The question of the existence of a partnership depends primarily upon the intention of the parties ascertained from the terms of the agreement and from the surrounding circumstances. Constans v. Ross (1951) 106 Cal.App.2d 381, 387.

 

Ordinarily the existence of a partnership is evidenced by the right of the respective parties to participate in the profits and losses and in the management of the business. Id.

 

In this instance, the parties submit conflicting evidence, concerning the circumstances surrounding Mr. Lavitt’s involvement with Brookhurst and Rosen and, thus, a triable issue of material fact exists, as to whether Mr. Lavitt can be held jointly and severally liable, as a partner of Rosen.

 

The Depositions of Mr. Rosen and Mr. Lavitt provide contrary and ambiguous statements, which leave the nature of their relationship unclear and unsuitable for Summary Adjudication.

 

Additionally, it is entirely unclear why Corporations Code §16306(a) applies to a Limited Liability Corporation. As Plaintiff has failed to explain this application, Summary Adjudication must be denied, as to Defendant Lavitt.

 

For the reasons stated above, however, Summary Adjudication is granted, as to the Second Cause of Action, against Defendants Brookhurst and Rosen.  Plaintiff has sufficiently established that money is owed to Plaintiff which Defendants have failed to pay. 

 

Moving party to give notice.

15

Knapp v. Nitta

Motion for Summary Judgment/Adjudication: OFF CALENDAR

16

Torres v. Santa Ana Unified School District

Motion for Summary Judgment/Adjudication: OFF CALENDAR

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