Superior Court of the State of California

County of Orange




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. 






Date: April 19, 2019







Berg vs. Hoyt





Defendant’s demurrer to plaintiff’s first amended complaint.  Demurrer overruled. 


First cause of action for fraud: Plaintiff Terry Wayne Berg (plaintiff) has alleged sufficient facts in support of this claim. (See FAC ¶¶ 6-23.)


At least some of the subject fraud is not alleged to have occurred until approximately July 2017 and January/February 2018. (See FAC ¶¶ 16-22.) Plaintiff commenced this action on July 24, 2018, well within three years of those dates. (See Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.)


An action for fraud may be maintained even where the allegedly fraudulent promise is unenforceable as a contract due to the statute of frauds. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29-31.)


Second cause of action for money had and received: The applicable statute of limitations for a claim for money had and received is the statute of limitations governing the underlying tort. (Ponti v. Farrell (1961) 194 Cal.App.2d 676, 682-683.) The underlying tort here is fraud, which has a three year statute of limitations. (See FAC ¶¶ 25-27; Code Civ. Proc., § 338, subd. (d).) As noted above, at least some of the subject fraud is not alleged to have occurred until July 2017 and January/February 2018. (See FAC ¶¶ 16-22.)  “The issue of fraud and misrepresentation is sufficiently raised by pleading a common count for money had and received. A common count may be used to recover money obtained by false and fraudulent representations.” (Ponti v. Farrell, supra,194 Cal.App.2d at p. 679.)


Defendants are ordered to answer the complaint within ten days of the date of this order.


Defendants to give notice. 




Calhoun vs. DOF II City Tower





1.  Defendants DOF II City Tower, JLL, and Egge’s demurrers to the second (breach of the covenant of quiet enjoyment), third (constructive eviction), fifth, seventh, and eighth causes of action of the second amended complaint.  Demurrers sustained in part with leave to amend and in part without leave to amend.


The demurrer to the second cause of action is sustained, with leave to amend, on the grounds that the 2ndAC fails to allege a relationship between plaintiff and these demurring defendants giving rise to the existence of such covenant between plaintiff and these defendants.


The demurrer to the third cause of action For constructive eviction  is sustained, with leave to amend,  on the basis that the 2ndAC fails to allege the existence of a landlord/tenant relationship between plaintiff and these demurring defendants, a disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy in whole or in substantial part for the purposes for which they were leased, and that the tenant surrenders possession of the leased premises.


The demurrers to The fifth, seventh, eighth causes of action are sustained without leave to amend based upon the concession in plaintiff’s demurrer opposition brief. (Opp. to Demurrer, 5:4-9).


Plaintiff to file and serve an amend complaint within ten days, as to the second and third causes of action against these defendants, and no additional claims are to be alleged these defendants without prior leave of court.


As the plaintiff has not specifically shown how the complaint can be further amended to state a valid claim against these demurring defendant, the court is disinclined to grant further leave to amend. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318).


2. Defendant’s motion to strike portions of plaintiff’s second amended complaint (punitive damages.)  Motion moot, in light of the ruling on the demurrers.


3.  Case management conference.


Moving party to give notice.



Caprelli-Solomon v Gaps




[Off calendar.]


Chantanasombute vs. Tony Rackauckas, Orange County District Attorney





Plaintiff’s motion to set briefing schedule and hearing date on petition for writ of mandate.  Motion granted.


  • Petitioner shall file his opening brief and supporting evidence by no later than April 26, 2019;
  • Respondents shall file their opening brief and supporting evidence by no later than May 28, 2019;
  • Petitioner shall file his reply brief and supporting evidence by no later than June 10, 2019; and
  • Oral argument shall take place in lieu of trial on June 24, 2019, at 10:00 a.m. in this department.


The court will determine whether an evidentiary hearing is warranted once the parties have fully briefed their respective positions.


Petitioner’s request in his reply that the court continue the pending motion for judgment on the pleadings to the same date as the hearing on the petition for writ of mandate is denied. Petitioner has provided no authority in support of such a request.


Petitioner to give notice.



Doe v McKay




[Continued to 5/31/19.]


Doe v Anaheim Union High School




[Continued to 6/14/19.]


Family Choice Medical Group v Nguyen




[Off calendar.]


Loeffler v De Mars




[Continued to 5/31/19.]



Moni vs. Conway





1.  Defendants Pharmco’s motion for summary adjudication (punitive damages.)  Motion granted.


Moving parties have provided sufficient evidence to meet their initial burden on summary judgment, by showing that plaintiffs cannot produce clear and convincing evidence supporting corporate liability for punitive damages under CA Civil Code 3294(b). 


Specifically, moving parties have presented evidence that while plaintiffs identify actions by “vice presidents” Bobbi Franke, Elena Frenkel, Steve DiBenedetto, and “director” Suzanne Krivda aka Suzanne King-Smith, plaintiffs cannot produce clear and convincing evidence that these “vice presidents” or “directors” had the requisite authority over corporate policy regarding safety issues associated with failing to install flame arrestors.  (Moving Party Separate Statement, Fact Nos. 1, 2, 3, 36, 38, 39, 40; Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 63 [vice president title alone insufficient, absent evidence of vice president’s duties, or authority to determine corporate policy]; Holtzclaw v. Certainteed Corp. (E.D. Cal. 2011) 795 F.Supp.2d 996, 1022 [“Titles alone are insufficient and call for speculation”]; White v. Ultramar (1999) 21 Cal. 4th 563, 576-577 [employer liability for punitive damages does not “depend on employees' managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy”]; CRST, Inc. v. Superior Court (2017) 11 Cal. App. 5th 1255, 1274 [corporate actor’s authority to determine corporate policy must be regarding the wrongdoing alleged]; Jarman v. HCR ManorCare, Inc. (2017) 9 Cal.App.5th 807, 820–821 [same].) 


As to defendants’ President, Paul DiMarco, even assuming defendants’ president had authority to direct corporate policy regarding safety issues, moving parties have shown that plaintiffs cannot provide clear and convincing evidence that DiMarco had knowledge of the safety issues associated with failing to install flame arrestors, or knowledge of facts requiring a warning.  (Moving Party Separate Statement, Fact Nos. 1, 2, 40-42; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168 [“there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character,” as “[a] corporation cannot confirm and accept that which it does not actually know about”].) 


Plaintiffs fail to meet their shifted burden on summary adjudication of proving clear and convincing evidence to create a triable issue of material fact.  (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121 [responsive evidence on motion for summary adjudication of punitive damages must satisfy “clear and convincing” standard]; Barton v. Hamilton Life Ins. Co. of America (2003) 110 Cal.App.4th 1640, 1644 [findings under Civ. Code 3294(b) must satisfy “clear and convincing” standard].)


Moving parties’ objections to responding parties’ evidence:


  1. Overrule.
  2. Overrule.
  3. Sustain: lacks foundation.
  4. Sustain: relevance. 
  5. Sustain: relevance.
  6. Sustain: relevance.
  7. Sustain: lacks foundation.
  8. Sustain: lacks foundation.
  9. Overrule.
  10. Overrule.
  11. Overrule.
  12. Sustain: lacks foundation.
  13. Sustain: lacks foundation.
  14. Sustain: lacks foundation.
  15. Overrule.
  16. Overrule.
  17. Overrule.
  18. Overrule.
  19. Overrule.
  20. Overrule.
  21. Overrule.
  22. Overrule.
  23. Overrule.
  24. Overrule.
  25. Overrule.
  26. Overrule.
  27. Overrule.
  28. Sustain: lacks foundation.
  29. Overrule.
  30. Overrule.
  31. Overrule.
  32. Overrule.
  33. Overrule.
  34. Overrule.
  35. Sustain: lacks foundation, hearsay. 
  36. Overrule.


Other procedural issues:


RPs did not provide any separate objections to MPs’ evidence, but RPs’ Separate Statement does offer some “objections” to the evidence cited by MPs in support of several facts.  (See RP Separate Statement, Fact Nos. 6-8, 10, 41.)  This does not comply with CRC 3.1354(b), which requires evidentiary objections to be made in a separate document, and that objections “must not be restated or reargued in the separate statement.  Thus, to the extent that RP’s Separate Statement “objects” to certain facts by objecting to the sufficiency of the underlying evidence, those “objections” are not considered here. 


With the Reply, on 3-1-19 MPs also filed: (1) a Reply Separate Statement; and (2) a declaration by defense counsel Charles LaPlante, with attached Exs. A-O, consisting of portions of deposition transcripts of various individuals.  On 3-8-19, plaintiffs filed an objection to both the Reply Separate Statement, and the declaration and exhibits filed in support of the Reply, citing Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252 [no Reply Separate Statement] and San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal. App. 4th 308, 313 [additional evidence submitted with Reply cannot be considered unless opposing party has notice and an opportunity to respond].  On 3-19-19, MPs filed a response to plaintiffs’ 3-8-19 objections, contending that Nazir v. United Airlines, Inc., supra, allows a Reply Separate Statement, so long as the Reply Separate Statement is limited only to additional facts asserted in the opposing Separate Statement.  MPs’ 3-19-19 response also argues that the additional declaration and evidence submitted with the Reply does not include any “new” evidence of which plaintiffs were not already aware, but rather consists of more “complete” portions of the deposition transcripts, in order to provide a fuller picture than the deposition portions cited by RPs in the Opp, which MPs contend RPs have taken out of context.


As the tentative ruling is to grant the motion on the basis that RP plaintiffs fail to produce clear and convincing evidence that any malice, oppression or fraud was committed by or ratified by a corporate officer with the requisite authority under CC 3294(b).  None of RPs’ additional facts, or evidence  is sufficient to create a triable issue on this point.  Thus, there is no need to consider MPs’ Reply Separate Statement, or MPs’ Reply Declaration and attached exhibits.


2.  Plaintiff’s motion for financial discovery.  Motion moot, in light of the ruling on the motion for summary adjudication.


Defendant to give notice on both motions.




Ruffalo La Plante vs. Pal





Defendant’s demurrer to plaintiff’s (pro per) first amended complaint.  Demurrer sustained with leave to amend.


The first amended complaint consists of approximately 70 pages of jury instructions and verdict forms.  It is entirely devoid of any facts that might constitute a cause of action.


The court notes that on 3/14/19 plaintiff filed a document entitled “supplemental to first amended complaint.”  This document does not really address the demurrer filed by defendant.  Rather, it appears to be an attempt at a second amended complaint.  Unfortunately, plaintiff did not seek leave of court to file this pleading and the court cannot consider it.


The court admonishes plaintiff that she should attempt to obtain legal representation if she wishes to seriously pursue this matter.


Plaintiff may have 30 days from this ruling to file a second amended complaint.


Responding party to give notice.



National Pharmacy Cooperative, Inc. vs. Medisca Inc.





Plaintiff’s motion for issuance of letters rogatory.  No opposition.  Motion granted.


Moving party to submit proposed letters rogatory and give notice.


Botsford v Great Wolf Resorts, Inc.




[Continued to 6/7/19.]