Superior Court of the State of California

County of Orange

 

Tentative Rulings

Law and Motion Calendar

Department C23

Honorable David J. Hesseltine

 

Hearing Date and Time:  August 28, 2023, at 2:00 p.m.

 

Court Reporters:  Official court reporters (i.e., court reporters employed by the court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it is that party’s responsibility to provide a court reporter, unless the party has a fee waiver and timely requests a court reporter in advance of the hearing (see link at end of this paragraph for further information).  Parties must comply with the Court’s policy on the use of privately retained court reporters, which may be found at the following link:  Civil Court Reporter Pooling.  For additional information regarding court reporter availability, please visit the court’s website at Court Reporter Interpreter Services.

Tentative Rulings:  The court endeavors to post tentative rulings on the court’s website no later than 12:00 noon on the date of the afternoon hearing.  Tentative rulings will be posted case by case on a rolling basis as they become available.  Jury trials and other ongoing proceedings, however, may prevent the timely posting of tentative rulings, and a tentative ruling may not be posted in every case.  Please do not call the department for tentative rulings if one has not been posted in your case.  The court will not entertain a request to continue a hearing or any document filed after the court has posted a tentative ruling.

Submitting on Tentative Rulings:  If all counsel intend to submit on the tentative ruling and do not desire oral argument, please advise the courtroom clerk or courtroom attendant by calling (657) 622-5223.  Please do not call the department unless ALL parties submit on the tentative ruling.  If all sides submit on the tentative ruling and advise the court, the tentative ruling shall become the court’s final ruling and the prevailing party shall give notice of the ruling and prepare an order for the court’s signature if appropriate under California Rules of Court, rule 3.1312.

Non-Appearances:  If no one appears for the hearing and the court has not been notified that all parties submit on the tentative ruling, the court shall determine whether the matter is taken off calendar or the tentative ruling becomes the final ruling.  The court also may make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.)

Appearances:  Department C23 conducts non-evidentiary proceedings, such as law and motion hearings, remotely by Zoom videoconference pursuant to Code of Civil Procedure section 367.75 and Orange County Local Rule 375.  Any party or attorney, however, may appear in person by coming to Department C23 at the Central Justice Center, located at 700 Civic Center Drive West in Santa Ana, California.  All counsel and self-represented parties appearing in-person must check in with the courtroom clerk or courtroom attendant before the designated hearing time.

All counsel and self-represented parties appearing remotely must check-in online through the court’s civil video appearance website at https://www.occourts.org/media-relations/civil.html before the designated hearing time.  Once the online check-in is completed, participants will be prompted to join the courtroom’s Zoom hearing session.  Participants will initially be directed to a virtual waiting room pending the start of their specific video hearing.  Check-in instructions and instructional video are available at https://www.occourts.org/media-relations/aci.html.  The Court’s “Appearance Procedures and Information--Civil Unlimited and Complex” and “Guidelines for Remote Appearances” also are available at https://www.occourts.org/media-relations/aci.html.   Those procedures and guidelines will be strictly enforced.  

Public Access:  The courtroom remains open for all evidentiary and non-evidentiary proceedings.  Members of the media or public may obtain access to law and motion hearings in this department by either coming to the department at the designated hearing time or contacting the courtroom clerk at (657) 622-5223 to obtain login information.  For remote appearances by the media or public, please contact the courtroom clerk 24 hours in advance so as not to interrupt the hearings.

 

No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.

 

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Case Name

Tentative

1.

Honarkar v. Makhijani

 

 

2.

MOM CA Investco LLC v. Honarkar

 

OFF CALENDAR

3.

Ramos v. Nissan North America, Inc.

 

CONTINUED

4.

Rudat v. Sauter

 

The motion of defendants Gary Sauter (Sauter) and Longview Investment LLC (Longview) [Sauter and Longview collectively referred to as Defendants] for leave to file a cross-complaint is GRANTED.  (Code Civ. Proc., §§ 428.10(b); 428.50(c).)

 

The proposed cross-complaint alleges causes of action against Fred Rudat and Marta Rudat, the crux of which is indemnity for the injuries plaintiff Daniel Rudat (Plaintiff) that are the basis of Plaintiff’s underlying complaint in this action.  “Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.”  (Time for Living, Inc. v. Guy Hatfield Homes/All American Develop. Co. (1991) 230 Cal.App.3d 30, 38.)

 

The moving papers sufficiently establish it would be in the “interest of justice” to grant leave to file the cross-complaint because it would resolve all related issues in the same case and would not affect the substantial rights of the parties.  (See City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 587.)  Defendants make it clear discovery has been conducted in this litigation and related cases as to the claims raised in the proposed cross-complaint and they are not seeking a trial continuance.  As all causes of action are strongly related to the underlying complaint, there is no prejudice to the other parties.  

 

Longview was not joined in this action until approximately one and one-half years after it was filed, and did not appear in this case until May 10, 2023.  As such, there has been no substantial delay in Longview seeking leave to file.  Moreover, the motion explains procedural difficulties Longview encountered in attempting to file a cross-complaint at the time it filed its answer.  Accordingly, there is a sufficient showing to justify the timing of Longview’s request to file a cross-complaint.  Sauter has been a party to this litigation for much longer than Longview, but it makes little sense to allow the cross-complaint by Longview, but not Sauter.  Doing so would only further complicate matters.  Furthermore, as stated above, extensive discovery already has been completed and the trial date will not be continued.  Plaintiff therefore has not shown sufficient prejudice to justify denying this motion.

 

Based on the foregoing, the motion is GRANTED.  Defendants are ordered to forthwith file the original of the proposed cross-complaint submitted with the motion.

 

Moving party to give notice.

 

5.

Sierra Forest Products, Inc. v. Viera

 

CONTINUED

6.

City of Garden Grove v. Rodriguez

 

On calendar is the third motion by plaintiff and petitioner City of Garden Grove (City) for attorney fees and costs.  The most recent motion was denied as premature because “[a]lthough the property was sold (after this motion was filed), there still is not a judgment in this case or indication from the receiver that all issues have been resolved.  This motion does not address the premature issue raised in the prior ruling.”  (Feb. 6, 2023 Minute Order; see also Apr. 6, 2022 Minute Order.)  The February 6, 2023 ruling also explained, “The court also notes the fees requested have increased from $5,279.70 in the prior motion to $10,668.50 in this motion.  Neither motion had any evidence of the actual time and billing entries billed by the attorneys, which would enable the court to determine whether the amounts billed were reasonable.  (PLCM Grp. v. Drexler (2000) 22 Cal.4th 1084, 1095.)  The City also has not produced evidence supporting the requested legal costs of $4,670.04.” 

 

The current motion was filed just eight days after the February 6, 2023 ruling, and appears to be nearly identical to the prior motion.  The motion again fails to address the concerns the court has raised about the motion being premature and the lack of sufficient supporting documentation for the attorney fees and costs requested.  It appears nothing has changed since the hearing on the last motion.  The receiver remains in place; no steps have been taken to complete the receivership and discharge the receiver.  No steps have been taken to obtain a judgment or otherwise complete this case.  Both the City’s attorneys and the receiver are experienced in these types of cases.

 

The City’s attorney and the receiver are ordered to appear for the hearing (either remotely or in person) and be prepared to explain what steps they intend to take to conclude the receivership, discharge the receiver, and otherwise conclude this litigation.  This matter cannot continue indefinitely.

 

7.

Zheng v. Lee

 

The motion for judgment on the pleadings (ROA #244) filed by defendants Alpha Motor Corporation and XO2LAB Corporation (collectively, Defendants) is hereby ordered off calendar.  Although the motion was timely filed, the court recently sustained a demurrer to the first amended complaint (FAC) filed by other defendants in this matter.  (ROA #262.)  In doing so, the court also granted plaintiff Gang Zheng (Plaintiff) leave to amend.  Plaintiff has since filed a second amended complaint (SAC).  (ROA #268.)  As the FAC is no longer the operative pleading, the pending motion is moot and therefore ordered off calendar.  Defendants will have the opportunity to file a responsive pleading to the SAC pursuant to code.

 

The court clerk is direct to give notice.

 

8.

Folson v. Anaheim Coin Laundry

 

On calendar are the following three motions by defendant Anaheim Coin Laundry, Inc. (Defendant) seeking to compel plaintiff Brandy Folson (Plaintiff) to respond to discovery:  (1) motion for an order compelling Plaintiff to respond to demand for production of documents and for monetary sanctions; (2) motion for an order compelling Plaintiff to answer special interrogatories without objection and for monetary sanctions; and (3) motion for an order compelling Plaintiff to answer form interrogatories without objection and for monetary sanctions.  All three motions are GRANTED.

 

Motion No. 1:  Document Production

 

The document requests were properly served on Plaintiff, and despite Defendant unilaterally granting Plaintiff an extension of time to respond, no response or communication from Plaintiff’s counsel have been received by Defendant.  Further, there is no opposition to this motion.  Accordingly, Defendant has met its burden and the motion is GRANTED.  Plaintiff is ordered to serve code-complaint responses, without objections, and to produce the requested documents, within 20 days of notice of this ruling.

 

The request for monetary sanctions also is GRANTED against Plaintiff and Plaintiff’s counsel, Yoon Kim of the Barnes Firm, L.C., in the amount of $620.  The sanctions must be paid to Defendant, through its counsel of record, within 30 days on notice of this ruling. 

 

Motion No. 2:  Special Interrogatories

 

The special interrogatories were properly served on Plaintiff, and despite Defendant unilaterally granting Plaintiff an extension of time to respond, no response or communication from Plaintiff’s counsel have been received by Defendant.  Further, there is no opposition to this motion.  Accordingly, Defendant has met its burden and the motion is GRANTED.  Plaintiff is ordered to serve code-complaint responses, without objections within 20 days of notice of this ruling.

 

The request for monetary sanctions also is GRANTED against Plaintiff and Plaintiff’s counsel, Yoon Kim of the Barnes Firm, L.C., in the amount of $300.  The sanctions must be paid to Defendant, through its counsel of record, within 30 days on notice of this ruling. 

 

Motion No. 3:  Form Interrogatories

 

The form interrogatories were properly served on Plaintiff, and despite Defendant unilaterally granting Plaintiff an extension of time to respond, no response or communication from Plaintiff’s counsel have been received by Defendant.  Further, there is no opposition to this motion.  Accordingly, Defendant has met its burden and the motion is GRANTED.  Plaintiff is ordered to serve code-complaint responses, without objections within 20 days of notice of this ruling.

 

The request for monetary sanctions also is GRANTED against Plaintiff and Plaintiff’s counsel, Yoon Kim of the Barnes Firm, L.C., in the amount of $300.  The sanctions must be paid to Defendant, through its counsel of record, within 30 days on notice of this ruling. 

 

Defendant is ordered to give notice.

 

9.

Tremblay v. Stanton

 

Before the court are the following three motions:  (1) motion of defendant Bruce Stanton (Defendant) for judgment on the pleadings filed on December 21, 2022, and directed to the complaint of plaintiff Michael George Tremblay, as Trustee of the Michael George Tremblay Trust dated February 15, 2000 (Plaintiff); (2) Plaintiff’s motion for judgment on the pleadings filed on December 28, 2022, and directed to Defendant’s answer; and (3) Plaintiff’s motion to compel Defendant to provide further responses to form interrogatories, set one, interrogatory no. 15.1.

 

Motion No. 1:  Defendant’s Motion

for Judgment on the Pleadings

 

Defendant’s motion for judgment on the pleadings is DENIED.  Defendant argues the allegations of the complaint and Exhibit 5 thereto show Plaintiff made a full credit bid for the subject property, and Plaintiff’s claims therefore are barred under the full credit bid rule.  As a threshold matter, however, Defendant has not shown Plaintiff made a full credit bid at the foreclosure sale.  

 

If the lender bids “an amount equal to the unpaid principal and interest of the mortgage debt, together with the costs, fees and other expenses of the foreclosure,” it is said to have made a “full credit bid.”  (Najah v. Scottsdale Ins. Co. (2014) 230 Cal.App.4th 125, 132, fn. 11, citing Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 606, fn. 10; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 356 (Kolodge) [credit bid equal to amount of unpaid principal and interest, plus the costs, fees and other expenses of sale, is known as “full credit bid”].)

 

Here, the complaint alleges Plaintiff made a credit bid, not a full credit bid, and in support cites to the attached Exhibit 5.  Exhibit 5 show a sum below the stated balance was bid.  Moreover, the “fact” of the sum actually owed at the time of the foreclosure is not subject to judicial notice in this context.  (See Kolodge, supra, 88 Cal.App.4th 349, 359 [“[n]o statute, and no case of which we have been made aware, bars a party from rebutting a recital in a trustee's deed pertaining to the amount of unpaid debt at the time of the trustee's sale by evidence showing that the amount was different from that stated in the deed prepared by the trustee”].) 

 

Accordingly, the record fails to establish Plaintiff actually made a full credit bid, and any evidence relating thereto cannot be taken on this non-evidentiary motion.  The factual predicate for Defendant’s challenge therefore is not established at this time.

 

Furthermore, there is a conflict in the law regarding whether a full credit bid necessarily bars claims against non-borrower third parties.  The more recent and well-reasoned authorities are to the contrary.  (See, e.g., Kolodge, supra, 88 Cal.App.4th at 370-372.)

 

Stanton’s Request for Judicial Notice, filed as ROA 38, is GRANTED under Evidence Code section 452(d) as to the existence of Exhibit 5 to the complaint, but not as to the truth of any disputed facts asserted therein.  (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

 

Motion No. 2:  Plaintiff’s Motion

for Judgment on the Pleadings

 

Plaintiff’s motion for judgment on the pleading is GRANTED IN PART, with 15 days leave to amend, as to Affirmative Defense Nos. 3-8, 10-14, 16-17, and 19-22, but DENIED in all other respects.

 

The same pleading of ultimate facts rather than legal conclusions is required in pleading affirmative defenses in an answer as causes of action in a complaint.  (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384 [answer must allege facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint”].)  Here, Affirmative Defense Nos. 3-8, 10-14, 16-17, and 19-22 state conclusory allegations or legal conclusions but lack factual support. The Motion as to those defenses is thus GRANTED.  However, as Defendant has shown he can potentially amend to cure those defects, he is granted 15 days leave to amend his Answer to allow him to attempt to do so.

 

The Motion as to the remaining defenses at issue is DENIED.  For defense No. 2, Code of Civil Procedure section 458 justifies the limited nature of the defense as asserted.  The rest of the defenses are adequately pled, to the extent they are affirmative defenses at all.

 

Motion No. 3:  Form Interrogatories

 

Plaintiff’s motion to compel further responses to form interrogatory no. 15.1 is MOOT as to the request for further responses based on the substantial supplemental responses provided for the form interrogatory at issue, as shown in the Frary Declaration at Exhibit I.  The providing of supplemental responses, however, does not necessarily moot the request for monetary sanctions.  As some of the initial responses were deficient, and supplemental responses were not provided until shortly before this hearing, sanctions are warranted.  Monetary sanctions in the amount of $2,216 are therefore imposed on Defendant on this Motion, to be paid to Plaintiff through his counsel of record within 30 days after service of notice of this ruling.

 

Counsel for Plaintiff is to give notice of these rulings.

 

10.

Interinsurance Exchange of the Automobile Club v. Acclaim Resource Partners, LLC

 

Before the court is a motion to be relieved as counsel of record for defendant Kevin May filed by Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP and its attorneys Christopher J. Heck and Johnny White (Moving Counsel).  Moving Counsel has complied with the procedural requirements of California Rules of Court, rule 3.1362.  The court finds there is good cause to grant the relief requested on the merits.  Thus, the unopposed motion to be relieved as counsel is GRANTED.

 

The order granting relief is effective upon filing of a proof of service of the signed order on the client.

 

Moving Counsel is to give notice of this ruling.

 

The scheduling of all other motions on calendar will be addressed in connection with the status conference to be conducted at the same time as the hearing on the motion to be relieved.

 

11.

Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism

 

 

12.

Mendoza v. FCA US, LLC

OFF CALENDAR

13.

 

 

14.