Superior Court of the State of California

County of Orange

 

DEPT C14 TENTATIVE RULINGS

 

Judge Robert J. Moss

 

The court will hear oral argument on all matters at the time noticed for the hearing.  If you would prefer to submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5214.  If no appearance is made by either party, the tentative ruling will be the final ruling.  Tentative Rulings are normally posted on the Internet by 4:00 p.m. on the day before the hearing. 

 

 

COURT REPORTERS WILL NOT BE PROVIDED BY THE COURT IN THIS DEPARTMENT FOR ANY HEARINGS, INCLUDING, BUT NOT LIMITED TO, TRIALS.  IF A PARTY DESIRES A RECORD OF ANY PROCEEDING IT WILL BE THE PARTIES’ RESPONSIBILITY TO PROVIDE THEIR OWN COURT REPORTER.  PARTIES MUST COMPLY WITH THE COURT’S POLICY ON THE USE OF PRO TEMPORE COURT REPORTERS WHICH CAN BE FOUND ON THE COURT’S WEBSITE AT:  http://www.occourts.org/media/pdf/7-25-2014_Privately_Retained_Court_Reporter_Policy.pdf

 

 

Date: January 18, 2019

 

 

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1.     

Ballas v Northern Trust

 

2016-00862877

[Off calendar.]

 2.

 

Carpenter vs. LG Security Holdings, LLC

 

 

30-2015-00769239-CU-OE-CJC

 

Plaintiff attorney’s motion to withdraw as attorney of record.  No opposition.  Motion granted.  Moving party to give notice.

 3.

Clark Wire & Cable Inc.  v New England Technology Finance, LLC

 

2018-00978474

 

[Continued to 2/1/19.]

 4.

Genel v American Legion

 

2017-00941998

 

[Continued to 3/22/19.]

 5.

Holburn vs. The Bays Apartments LLC

 

 

30-2018-00996560-CU-MC-CJC

 

Defendant’s motions to compel responses to written discovery and to deem requests for admissions admitted.  No opposition.  Motions granted.  Sanctions are awarded to defendant in the total sum of $1575.00 (7 hours x $225/hr.)

 

Plaintiff is ordered to provide properly verified responses to interrogatories and requests for production (including copies of requested documents) without objection by 2/8/19.  The requests for admissions are deemed admitted.

 

Moving party to give notice.

 

 6.

Janey vs. Kitson Family Trust

 

 

30-2017-00938859-CU-FR-CJC

 

Plaintiff’s motion for leave to file second amended complaint.  No oppositions.  Motion granted. 

 

Since the plaintiff attached the proposed second amended complaint as an exhibit and the court cannot detach an exhibit for filing, the plaintiff is ordered to file the second amended complaint by 1/25/19.  All parties served with the motion will be deemed served with the second amended complaint on today’s date.

 

Moving party to give notice.

 

 7.

Loefler v DeMars & Associates, LTD

 

2017-00923227

 

1.  Defendant’s demurrer to plaintiff’s third amended complaint.  Demurrer overruled.

 

The third amended complaint relies on three alleged misrepresentations:

 

  1. In January 2013, and again in January 2015, “the DEMARS website ...  represented that 92 percent of homeowners would recommend the DEMARS’ arbitration program to a friend or colleague.”  (TAC at Paras. 14, 23 [“Website Satisfaction Statements”].)
  2. In June 2015, “[t]he DEMARS website also specifically misrepresented the qualifications of its arbitrators, participating in the ‘CAP-Home’ arbitration program, as consisting of ‘Expertise in new home construction is required' and ‘Architect or Engineer for structural issues.’”  (TAC at Para. 23 [the “Website Qualifications Statement”].) 
  3. In February 2015, MP’s case administrator, Debbie Pinkowski, in a telephone conversation, “represented to plaintiff’s counsel that she had "used" the arbitrator before and that he had sufficient experience, knowledge, and skill to consider Plaintiff’s claims.”  (TAC at Para. 26 [“Pinkowski Statements”].)

 

The first alleged misrepresentation is insufficient to support this cause of action; however, the second and third are sufficiently alleged.

 

Regarding the first alleged misrepresentation, plaintiff fails to allege that the statement was false and also fails to adequately allege knowledge of falsity.  It is not necessarily inconsistent that 92% of customers expressed satisfaction with the warranty program when 75% of the time arbitration through the program resulted in no recovery for the homeowner.  Moreover, plaintiff describes this statement as misleading.  A fraud claim requires a misrepresentation of fact, not a misleading statement.

 

With respect to the second and third alleged misrepresentations (Website Qualifications Statement & Pinkowski statements), the third amended complaint alleges that in June 2015, “[t]he DEMARS website also specifically misrepresented the qualifications of its arbitrators, participating in the ‘CAP-Home’ arbitration program, as consisting of ‘Expertise in new home construction is required' and ‘Architect or Engineer for structural issues.’”  (TAC at Para. 23 [the “Website Qualifications Statement”].)  The TAC goes on to allege that the arbitrator selected by MP had no “judicial, geotechnical, new home construction, or engineering experience or expertise,” despite plaintiff’s request otherwise (TAC at Paras. 26, 35-39), which shows that the Website Qualifications Statement was false.  Thus, the Website Qualifications Statement sufficiently alleges the first element of fraud, i.e. a misrepresentation of fact.

 

Knowledge of falsity and intent to defraud are sufficiently alleged at Para. 40 of the 1st C/A, which alleges:

 

 

40.  Ms. Pinkowski knew that her representations regarding the background and qualifications of the DEMARS arbitrator were false when made, and made such representations with the intent to induce Plaintiff's detrimental reliance thereon. DEMARS did not want the extra expense of hiring a retired judge, and/or an engineer as provided in the DEMARS rules, to hear Plaintiff's claims. Plaintiff detrimentally relied on the DEMARS representations, and was harmed thereby by incurring arbitration fees, expert witness fees, and home inspection fees she would not have otherwise incurred.  [Emphasis added.]

 

Thus, while the first sentence of Para. 40 refers to Pinkowski’s alleged statements and knowledge of falsity, the emphasized portion above alleges sufficient facts to support the scienter element as to MP DeMars generally, as to the Website Qualifications Statement. 

 

There are also sufficient facts alleged to support the element of detrimental reliance, in that the TAC alleges that plaintiff would not have executed the dispute resolution agreement, would not have agreed to DEMARS as the arbitration service provider, and/or would have objected to the arbitrator initially selected by DEMARS to hear the dispute.  (TAC at Paras. 15, 24, 25, 29, 38.)  The court also notes that the TAC alleges that plaintiff relied not only on Pinkowski’s statements regarding the arbitrator’s qualifications, but also “upon the representations on the DEMARS website regarding the background and qualifications of its arbitrators.”   (TAC at Para. 37.)

 

Finally, the TAC also alleges sufficient facts to show damages, such as a case initiation fee, arbitration and administrative fees totaling approximately $5,000, as well as “$30,000 in expert witness fees and $1,500 for an independent home inspection report by a certified home inspector in order to attempt to educate the arbitrator.”  (TAC at Paras. 25, 27, 36, 40, 41.) 

 

As to damages, MP argues that plaintiff’s allegations are “implausible,” because plaintiff would have incurred arbitration expenses “like these” regardless of the arbitration provider.  (Moving papers at 7:19-27.)  This argument fails.  For purposes of demurrer, plaintiff's allegations must be accepted as true, no matter how unlikely or improbable.  (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  Furthermore, the TAC alleges that plaintiff incurred damages specifically attributed to the arbitrator’s lack of expertise, which are not necessarily damages that plaintiff would have incurred with a more knowledgeable arbitrator.

 

Finally, the TAC alleges that MP’s case administrator, Debbie Pinkowski, represented to plaintiff’s counsel in a telephone conversation in mid-February 2015 that she had "used" the arbitrator before and that he had “sufficient experience, knowledge, and skill to consider Plaintiff’s claims.”  (TAC at Para. 26.)  MP contends that this is an unactionable opinion, not a misrepresentation of fact.  If the alleged representation were considered solely on its own, MP might have a point.  However, the TAC alleges that Pinkowski made this representation in response to specific requests by plaintiff’s counsel: (1) that “the arbitrator be a retired judge, or an attorney with equivalent experience deliberating on complex issues of statutory and contract interpretation;” (2) that the arbitrator have “knowledge of soils conditions and new home construction,” and be “one who could assess the causes of the cracking throughout her yard and cracking and possible water damage, and mold, in the exterior and interior surfaces of her newly constructed home; (3) “[a]lternatively, Plaintiff requested the appointment of a technical advisor, as contemplated in the DEMARS rules to assist the arbitrator.  (TAC at Para. 26.)  In response to plaintiff’s counsel’s requests, Pinkowski represented that the arbitrator “had sufficient experience, knowledge, and skill to consider Plaintiff’s claims.”  Thus, when considered in the context of plaintiff’s counsel’s requests, Pinkowski’s statement is less an opinion and more a factual representation that the arbitrator had the specific expertise necessary.

 

As regards the CLRA cause of action, demurrers for uncertainty are disfavored and should be sustained only where the complaint is so bad that the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  (Weil & Brown, Civil Procedure Before Trial, Section 7:85, citing Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  That is not the case here.  As noted above, the TAC sets forth three misrepresentations, two of which are sufficiently specifically pled to support fraud; thus, they are also necessarily also sufficiently specific to plead a statutory violation.  Furthermore, while MP professes confusion as to which alleged representation[s] form the basis of the CLRA C/A, MP also specifically cites to Para. 46 of the FAC, which alleges that MP misrepresented the "background and qualifications of the arbitrator selected.”  Moreover, even if MP were correct that the Pinkowski Statement is protected by arbitral immunity, this C/A could still be supported by the “Website Qualifications Statement,” which MP fails to show is protected by arbitral immunity.

 

Finally, as regards the false advertising claim, the alleged misrepresentations that the court finds sufficient above are also sufficiently pled as a predicate for this cause of action as well.

 

2. Defendant’s motion to strike portions of the third amended complaint.  Motion granted in part and denied in part.

 

The motion is granted as to Para. 41, alleged within the first cause of action for fraud.  There are no facts alleged to show that the customer satisfaction statements on defendant’s website were false; thus, this allegation cannot support plaintiff’s fraud claim.  However, the first cause of action adequately alleges other fraudulent representations.

 

Plaintiff has not shown how this allegation can be amended to state a valid fraud claim.  Accordingly, the motion to strike Para. 41 is granted without leave to amend.

 

The remainder of the motion to strike is denied.

 

Moving defendant’s request for judicial notice is granted.  (Ev. 452(d)(1).)

 

 

Moving defendant DeMars & Associates, LTD. is ordered to file an Answer to the Third Amended Complaint within 10 days.

 

Plaintiff to give notice.

 

 

 

 

 

 8.

The American Legion Yacht Club, Inc. vs. Newport Harbor Post No. 291, of the American Legion

 

 

30-2018-01029371-CU-OR-CJC

 

Plaintiff’s motion for preliminary injunction.  Motion denied.

 

Plaintiff ALYC failed to carry its burden of demonstrating a reasonable probability of prevailing on its causes of action based on admissible evidence. The court notes that an unverified complaint cannot be considered as part of the evidence on a motion for a preliminary injunction. See, Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527.     

 

As to plaintiff’s first cause of action for declaratory relief seeking an irrevocable license or easement, there is no showing of any innocent encroachment for an equitable lien, nor any technical trespass requiring a license. Instead, plaintiff ALYC has contended it and defendant Post 291 had an oral agreement to permit its operation of its yachting club on the subject Newport Beach premises.

 

As to plaintiff’s second cause of action for injunctive relief, injunctive relief is a remedy and not a cause of action. See, See, Shell Oil Co. v. Richter (1964) 52 Cal.App.2d 164, 168.

 

As to plaintiff’s third cause of action for breach of contract-promissory estoppel, plaintiffs have not presented sufficient evidence of the contract allegedly entered into and its terms.

 

As to plaintiff’s fourth cause of action for trespass to chattels, fifth cause of action for aiding trespass to chattels, sixth cause of action for conversion, and seventh cause of action for aiding and abetting conversion, plaintiff has not presented sufficient evidence of the claims trespass and/or conversion, and the evidence presented by the parties is conflicting.

 

As to plaintiff’s eighth cause of action for intentional interference with contractual relations, such an action cannot be stated against a party to the contract such as defendant Post 291. See, Applied Equipment Corp. v. Litton Saudi Arabia Limited (1994) 7 Cal.4th 503, 516 to 517.

 

As to plaintiff’s ninth cause of action for intentional interference with prospective economic advantage, plaintiff has not set forth sufficient evidence of intentional acts as to some future economic interest with some third parties. See, Asia Investment Co., Ltd. v. Borowski (1982) 133 Cal.App.3d 832, 840 to 841.

 

As to plaintiff’s tenth cause of action for conspiracy, conspiracy is a doctrine and not a cause of action. See, Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510 to 511.

 

As to plaintiff’s eleventh cause of action for breach of the covenant of good faith and fair dealing, the covenant requires a supporting contract and plaintiff has not presented evidence as to the contract entered into and its terms. See, Langan v. United Services Automobile Ass’n (N.D. Cal. 2014) 69 F.Supp.3d 965, 980. Moving party to give notice.

 

Plaintiff ALYC’s Evidentiary Objections: Declaration of Attorney Jamie Duarte: OVERRULED as to Objection Nos. 1, 2, 10 and 11. SUSTAINED as to Objection Nos. 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23.  

 

Plaintiff ALYC’s Request for Judicial Notice: Plaintiff ALYC requested that the court take judicial notice of the following document in support of its motion for a preliminary injunction against defendant Post 291: Exhibit 1, IRS Form 990 for 2015 filed by Newport Harbor Post 291 of The American Legion, Inc. GRANTED as to Exhibit 1, but such notice is limited to the filing of this tax return with the IRS and not as to the truth of any of the claims or contentions set forth therein. See, Evidence Code § 452(f) and Kilroy v. State California (2004) 119 Cal. App. 4th 140, 145 citing Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 875, 882.

 

Moving party to give notice.

      

 9.

 

THE IRVINE COMPANY LLC vs. HUANG

 

 

30-2017-00899862-CU-BC-CJC

 

Cross-defendant’s motion to set aside default.  Motion denied.

 

First, the motion is untimely.  A motion under CCP § 473 must be brought within a reasonable time not to exceed 6 months after the default was entered.  This time limit is jurisdictional.  Manson, Iver & York v Black (2009) 176 Cal. App. 4th 36.  The default was entered on 7/18/17.  This motion was filed over a year later on 12/12/18.

 

Second, even if the court could consider the merits of their motion, defendants’ declaration in support of the motion fails to establish inadvertence, surprise, or excusable neglect.

 

Responding party to give notice.

 

10.

Wilens v Texas E & P Group

 

2017-00956320

 

[Continued to 2/1/19.]

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