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: September 21, 2018

 

 

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 1.

Friedman vs. Gates

 

 

30-2018-01016038-CU-PT-CJC

 

OSC re writ of mandate commanding respondents to qualify petitioner as a candidate for the position of City Attorney.  Writ denied.

 

While neither side briefed the issue of the specific statutory grounds from the relief requested by petitioner, the petition is labeled as an “Election/Ballot Matter” and priority was requested by petitioner. Thus, the dispute is framed by the provisions in the California Elections Code governing writs of mandate in connection with ballots, voter information materials, and candidate statements. A common statutory theme in each of the statutes authorizing relief via writ of mandate is a requirement that the party seeking relief must show that the requested writ relief will not substantially interfere with printing or distribution of official election materials.

 

While not deciding the writ on this grounds, the court is acutely aware of the fact that the hearing of this matter is occurring after the deadline for the publication of official election materials, and that this appears in no small part, due to petitioner’s choice to file this “election/ballot matter” with the California Supreme Court instead of timely filing the petition with the trial court, which in turn, would have allowed for hearing before the deadline for printing official election materials.

 

The petition raises two alternative grounds for relief, one based upon a claim that respondent Huntington Beach’s restriction on being a candidate for city attorney violates equal protection, and an alternative grounds that respondent Huntington Beach’s candidate restriction constitutes an unconstitutional bill of attainder. Both claims are without merit.

 

In Clements v. Fashing (1982) 457 US 957, 958, the Supreme Court majority held that: “(a) Candidacy is not a “fundamental right” that itself requires departure from traditional equal protection principles under which state-law classifications need only be drawn in such a manner as to bear some rational relationship to a legitimate state end. Decisions in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.”

 

Respondents present evidence that the California State Bar, which regulates the admission of individuals to practice law in this state, recognizes the efficacy of the American Bar Association (ABA)’s requirements for law school accreditation, exempted accredited law schools from certain requirements imposed upon state but not ABA accredited law schools. There is an objective correlation between a student’s ability to pass the state bar examination and whether the student attended an ABA accredited law school. As passing the bar examination is the primary requirement imposed by the State to practice law, contrary to petitioner’s arguments, there is a relationship between graduating from an ABA accredited law school and ability to perform legal services by passing the state set examination to allow an applicant to practice law.

 

The City of Huntington Beach has a reasonable interest in the qualifications of elected officials. (See Rawls v. Zamora (2003) 107 Cal.App.4th 1110, 1117). The City of Huntington Beach Charter imposes a wide range of responsibilities upon an elected city attorney. The court finds that there is a reasonable relationship between the City’s requirements for an elected city attorney to have graduated from an ABA accredited law school and its interest in the qualifications of elected officials. The court also finds that the requirement would meet an intermediate level of scrutiny.

 

In Law School Admission Council, Inc. v. State (2014) 222 Cal.App.4th 1265, 1298-99, the Court of appeal identified three criteria for determining whether legislative action constitutes a bill of attainder. There are: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes; and (3) whether the legislative record ‘evinces a congressional intent to punish.’  Section 309 of the Huntington Beach exhibits none of these criteria.

 

As discussed above, the City of Huntington Beach has a valid interest in the qualification of candidates for public office, and a requirement designed to effect this goal does not fall within the “historical meaning of legislative punishment.” The Section 309 restriction furthers a non-punitive legislative purpose as noted above, and the records before the court as to the adoption of the City’s amended Charter do not evidence an intent to punish.

 

The fact that other municipalities, or the State Attorney General position do not include such restrictions is not controlling. The State Attorney General performs different functions than a typical city attorney with deputies and other legal counsel. In cities with elected city attorneys, the City lacks the ability to vet candidates for the position, thus a requirement above and beyond State Bar admission is both reasonable, and desirable.  The fact that other cities have chosen not to impose such requirements, or have imposed different requirements, does not render the subject requirement void or unreasonable.

 

The requests for judicial notice are granted.

 

Moving party to give notice.

 

 2.

 

In re: 1133 Goldenrod Avenue, Newport Beach, CA 92625

 

 

30-2018-01002342-CU-PT-CJC

 

Hearing re distribution of surplus funds post foreclosure sale.  The funds ($662,993.22) shall be distributed to Real Time Solutions, Inc.  All other claims are denied.  Claimant Real Time Solutions, Inc. to give notice.

 3.

In Re: 435 W. Center Street, Unit 303, Anaheim, CA 92805

 

 

30-2018-00999017-CU-PT-CJC

 

Petitioner’s motion to distribute surplus funds post foreclosure sale. Hearing continued to 11/16/18 at 9:00 AM in this department.

 

Petitioner has failed to serve Mr. Liu with the petition or its intent to deposit surplus funds (within which it provides notice that any claim should be filed with the court within 30 days), at the address the petitioner itself has provided, i.e., at 435 W. Center Street, Unit 303, Anaheim, CA 92805. (See Pet. at ¶ 8, compare proof of service thereto; see also proof of service attached to the notice of intent to deposit surplus funds filed on June 19, 2018.) Accordingly, petitioner’s proofs of service with respect to these documents are defective as to Mr. Liu, who should be given the full statutory 30 days to present a claim, if he would like to do so. (See Civ. Code, § 2924j, subd. (d).)

 

Also, as a result of petitioner’s typographical error within the body of its petition at paragraph 8, the court clerk has mailed the notice of the hearing to Mr. Chan at an incorrect address. Specifically, the proof of service to the notice of hearing shows it was served on Mr. Chan at 8037 Scholarship, Irvine, CA 92612, instead of at his correct address, 8034 Scholarship, Irvine, CA 92612. (See Pet. at Attachment 5 [trustee’s sale guarantee].) Mr. Chan should be given at least 15 days’ notice of the hearing, so that he may make a timely claim if he would like to do so. (See Civ. Code, § 2924j, subd. (d).)

 

 

The court clerk is ordered to serve (1) a copy of the petition and all attachments thereto filed on June 13, 2018, (2) a copy of the notice of intent to deposit surplus funds filed on June 19, 2018, and (3) a copy of this minute order, on Jason Liu as follows:

 

Jason Liu

435 W. Center Street, Unit 303

Anaheim, CA 92805

 

The court clerk is also ordered to serve a copy of this minute order on the following persons as set forth below:

 

Nolan M. Chan

8034 Scholarship

Irvine, CA 92612

 

          Glen Lam

8034 Scholarship

Irvine, CA 92612

 

Chelsea Wright

C/O Don Brand, Esq.

The Brand Law Firm Corp.

2321. E. 4th St., Ste. C-473

Santa Ana, CA 92705

 

Dan Wu

C/O Michael A. Wallin, Esq.

Wallin Russell

26000 Towne Centre Drive, Ste. 130

Foothill Ranch, CA 92610

 

All persons listed above shall take notice that any person interested in making a claim to the surplus proceeds from the foreclosure sale of the subject property commonly known as 435 W. Center Street, Unit 303, Anaheim, California 92805, must serve and file a claim with the court at least 15 days prior to the continued hearing date noted above.

 

 4.

in re: 21091 Leasure Lane Huntington Beach, CA  92646

 

 

30-2018-01008055-CU-PT-CJC

 

Petitioner’s motion to distribute surplus funds post foreclosure sale. The court orders these proceedings stayed pending resolution of the related civil action, Vega v. U.S. Bank, N.A., et al, Case No. 30-2018-00985319.

 

The court cannot determine the proper distribution of the surplus funds until the related action is resolved due to the lis pendens recorded against the subject property on April 12, 2018. (See Code Civ. Proc., § 405.24.)

 

The court orders the clerk to give notice. 

 

 5.

Claim of Fleck

 

 

30-2017-00962246-CU-AF-CJC

 

People’s motion for order striking claim for failure to comply with discovery order.  No opposition.  Motion granted.  Moving party to give notice.

 6.

Kemper Specialty Insurance Company vs. Mejia

 

 

30-2018-01003108-CU-PT-CJC

 

Petition for assignment of case number.  No opposition.  Petition moot.  A case number has already been assigned.  Moving party to give notice.

 7.

Truplug, a division of Artelier Studio, LLC vs. Forespar Products Corp.

 

 

30-2011-00510961-CU-BT-CJC

 

Plaintiff’s motion to release funds deposited with court in lieu of undertaking.  No opposition.  Motion granted.  Moving party to give notice.

 8.

City of Irvine vs. Ganish

 

 

30-2018-01006496-CU-PT-CJC

 

[Continued to 10/12/18 at 9:00 AM in this department.]

 9.

 

Norbert Foigelman Trust vs. 2 Flamingos, LLC

 

 

30-2016-00856532-CU-UD-CJC

 

Receiver’s motion for approval of first & final accounting and related orders.  No opposition.  Motion granted.  Moving party to give notice.

10.

City of Fullerton vs. Beze

 

 

30-2015-00810361-CU-PT-CJC

 

Receiver’s motion to discharge receiver, settling all accounts and exonerating the surety.  No opposition.  Motion granted.

 

Any surplus funds remaining in the receiver’s trust account to be paid to respondent Victor Beze. 

 

Receiver to give notice.

 

11.

1600 Dove Lp vs. Sperry Van Ness

 

 

30-2018-01009728-CU-UD-CJC

 

Defendant’s motion to set aside default/default judgment.  Motion denied.

 

The declaration by moving party attorney in support of the motion fails to comply with CCP 2015.5; thus, it is defective and of no evidentiary value.  (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal. 4th 601, 612.) 

 

Moving parties have not shown that the default judgment is void due to defective service of summons (CCP 473(d)), or that service of summons failed to provide actual notice to defendant in time to appear and defend the action (CCP 473.5; CC 1788.61).  Moving parties filed an Answer to the complaint on 8-9-18, without moving to quash summons at that time or prior, thus waiving any issues of lack of personal jurisdiction, inadequacy of process, or inadequacy of service of process.  (CCP 418.10(e)(3).) 

 

Finally, even if the court were to accept moving party’s attorney’s declaration, moving parties have not provided sufficient evidence to show grounds for discretionary relief under CCP 473(b).  If MP attorney checked the court docket on 8-20-18, he would have seen that a trial date had been set.  RP attorney filed its notice of non-stipulation to Commissioner Luege and Request to Set Case for Trial on 8-16-18.  (ROA Nos. 14 and 15.)  The Notice of Hearing setting the trial date was filed on 8-17-18.  (ROA No. 16.)

 

The Notice of Hearing was not in fact served until 8-20-18 [the following Monday].  (Id.)  However, if MP attorney checked the court docket on 8-20-18, he would have seen at a minimum that a trial date had been set, as the Notice of Hearing setting the trial date was filed on 8-17-18.  MP attorney also admits notice of RP plaintiff’s Request to Set Case for Trial, as MP attorney attempted to file a Counter-Request on 8-20-18, which was rejected that same date due to a missing premises address [ROA No. 18].  RP also provides evidence that RP served MP attorney on 8-16-18 with its Request to Set Case for Trial, along with the notice of non-stipulation to Commissioner Luege.  (Ortiz Decl. in support of Opp, Paras. 10 and 11, and Ex. D thereto.)  MP attorney then avers that the trial took place on 8-27-18 while he was still in Georgia. 

 

Even accepting MP attorney’s bare-bones statement that he never received notice of the 8-27-18 trial date, he was at least aware before leaving on his trip on 8-20-18 that a trial date had been set.  Given this, it is not reasonable to merely fire off a Counter-Request to set the case for trial and then assume that will resolve the matter, particularly given the short timeframes and deadlines in UD actions.  MP attorney was not out of the country and/or somewhere inaccessible, with no phone or internet access; he was in Atlanta.  MP attorney could have taken a number of other reasonable actions to avoid the default prove-up that occurred, even if he was out of state.  MP attorney could have had an associate appear ex parte to obtain a new trial date (or have retained contract counsel to do so, if he is a sole practitioner).  At a minimum, MP attorney could have contacted the clerk.  To rely on a [disputed] agreement regarding an unspecified trial date, and only filing a [defective] Counter-Request to set case for trial, is not reasonable.

 

Responding party to give notice.

 

 

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