LAW & MOTION CALENDAR

TENTATIVE RULINGS

August 17, 2023

Judge Melissa R. McCormick
Department C13

Department C13 hears law and motion on Thursdays at 10:00 a.m. and 1:30 p.m.

Court reporters:  Official court reporters are not provided in this department for any proceedings.  If the parties desire the services of a court reporter, the parties should follow the procedures set forth in the Privately Retained Court Reporter Policy on the court’s website at www.occourts.org.

Tentative rulings:  The court endeavors to post tentative rulings on the court’s website by 9:00 a.m. the day of the hearing.  Tentative rulings may not be posted in every case.  Please do not call the department for tentative rulings if tentative rulings have not been posted.  The court will not entertain a request to continue a hearing or the filing of further documents once a tentative ruling has been posted.

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) 622-5213.  Please do not call the department unless all parties submit on the tentative ruling.  If all sides submit on the tentative ruling and so 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 Cal. R. Ct. 3.1312.

Remote appearances and public access: All nonevidentiary hearings, including law and motion, will be conducted via Zoom.  All counsel and self-represented parties appearing for such hearings must check-in online through the court’s civil video appearance website at https://www.occourts.org/media-relations/civil.html before the hearing begins.  Check-in instructions and an instructional video are available on the court’s website.  Please see Orange County Superior Court Local Rule 375 and Appearance Procedure and Information—Civil Unlimited and Complex (pub. 7/1/22) for additional information.

In those instances when proceedings will be conducted only by remote video and/or audio, public access will be provided to interested parties by contacting the Courtroom Clerk 24 hours in advance.

Photographing, filming, recording, and/or broadcasting court proceedings are prohibited unless authorized pursuant to California Rule of Court 1.150 or Orange County Superior Court Local Rule 180.

Non-appearances:  If nobody 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.

NO.	CASE NAME	MATTER
10:00 a.m.
1	Vu v. Orange County Department of Education	Attorney Michael L. Vogelsang, Jr.’s Motion to Appear Pro Hac Vice Attorney Michael L. Vogelsand, Jr. moves to appear pro hac vice for plaintiff Brittany Vu.  For the following reasons, the unopposed motion is granted. The application is verified and/or supported by a declaration(s).  It properly sets forth the applicant’s residence and office addresses and California counsel’s contact information.  It states the applicant’s courts and dates of admission and attests to his good standing.  The application states there have been no prior applications in California state courts in the last two years.  Attorney Vogelsand attests that the motion has been served on the State Bar of California at its San Francisco address and that the application fee has been paid.  Cal. R. Ct. 9.40(c)-(e). Plaintiff to give notice.
2	A.P. v. Doe 1	Attorney Craig K. Vernon’s Motion to Appear Pro Hac Vice Attorney Craig K. Vernon moves to appear pro hac vice for plaintiff A.P.  For the following reasons, the unopposed motion is granted. The application is verified and/or supported by a declaration(s).  It properly sets forth the applicant’s residence and office addresses and California counsel’s contact information.  It states the applicant’s courts and dates of admission and attests to his good standing.  The application states there have been two prior applications in California state courts in the last two years.  Attorney Vernon attests in his supplemental declaration (ROA 99) that the motion has been served on the State Bar of California.  While neither the application nor the supplemental declaration states the application fee has been paid, Exhibit A to Attorney Vernon’s supplemental declaration states the State Bar of California “filed and approved” the application, which is sufficient evidence the fee has been paid.  Cal. R. Ct. 9.40(c)-(e). Plaintiff to give notice.
1:30 p.m.
1	Alliance of Schools for Cooperative Insurance Programs v. Pfaffly	Plaintiff Alliance of Schools for Cooperative Insurance’s Motion to Consolidate Plaintiff Alliance of Schools for Cooperative Insurance moves for an order consolidating OCSC Case Nos. 2022-01286688 and 2023-01305736 with this case (OCSC Case No. 2022-01249842) for all purposes.  Plaintiff’s counsel in Case No. 2022-01249842 also represents the plaintiffs in Case Nos. 2022-01286688 and 2023-01305736.  For the following reasons, plaintiff’s unopposed motion is granted. The court previously ordered Case No. 2022-01286688 related to this case.  See 11/7/22 Order.  Defendants in Case No. 2023-01305736, a limited jurisdiction case, filed a Notice of Related Case on April 4, 2023.  No parties filed objections to the Notice of Related Case.  See Cal. R. Ct. 3.300(g).  The court finds that Case No. 2022-01249842 and Case No. 2023-01305736 meet the criteria for relatedness set forth in California Rule of Court 3.300, orders the cases related, and orders Case No. 2023-01305736 transferred to this department.  See Cal. R. Ct. 3.300(h)(1)(B). If actions involving a common question of law or fact are pending the same court, a judge of that court may order a joint hearing or trial of any or all the matters at issue in the actions.  Cal. Civ. Proc. Code § 1048(a).  Case Nos. 2022-01249842, 2022-01286688, and 2023-01305736 involve the same defendants, the same or similar issues, and potentially the same or similar evidence.  These facts warrant consolidation of the cases.  The court deems Case No. 2022-01249842 the lead case. The trial remains scheduled for June 24, 2024 at 9:00 a.m. in Department C13. Clerk to give notice in OCSC Case Nos. 2022-01249842, 2022-01286688 and 2023-01305736.
2	Balboa Capital Corporation v. 163 Transport LLC	Plaintiff Balboa Capital Corporation’s Motion to Strike Answer and Enter Default Plaintiff Balboa Capital Corporation moves for orders striking the answer filed by defendant 163 Transport LLC and entering defendant’s default.  Plaintiff’s unopposed motion is granted. Purporting to represent itself, defendant filed an answer on January 30, 2023.  Defendant is a limited liability company.  This entity cannot represent itself.  Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 n.5.  On March 23, 2023 the court ordered defendant to obtain counsel and file evidence thereof with the court by April 27, 2023.  See 3/23/23 Order (ROA 36, 37).  Defendant has not obtained counsel.  The answer defendant filed on January 30, 2023 is therefore stricken, and the court orders defendant’s default entered. The trial remains scheduled for January 8, 2024 at 9:00 a.m. in Department C13. Plaintiff to give notice.
3	Hoang v. Ben Auto Haus, LLC	Plaintiff Ann N. Hoang’s Motion for Summary Adjudication Plaintiff Ann N. Hoang moves for summary adjudication of the third cause of action for violation of Civil Code section 1632 against defendant Ben Auto Haus, LLC.  For the following reasons, plaintiff’s motion is denied.  A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  Cal. Civ. Proc. Code § 437c(p)(1).  Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  Id. Plaintiff’s third cause of action alleges violation of Civil Code section 1632 against defendants Ben Auto Haus, LLC and San Diego County Credit Union.  Plaintiff alleges defendant Ben Auto Haus did not comply with its obligation under section 1632 to provide plaintiff with a Vietnamese-language translation of the vehicle sales contract before it was signed.  Plaintiff alleges San Diego County Credit Union is liable pursuant to the Federal Trade Commission’s Holder Rule and Civil Code section 2982.5(d)(4) for Ben Auto Haus’s alleged violation of section 1632.  In the instant motion, plaintiff seeks summary adjudication of the third cause of action against Ben Auto Haus.  Plaintiff has presented evidence her “native language is Vietnamese,” Hoang Decl. ¶ 2, she negotiated the vehicle purchase in Vietnamese, and her boyfriend who accompanied her did not translate English into Vietnamese or Vietnamese into English during the negotiations.  Plaintiff alleges Ben Auto Haus did not provide her with a Vietnamese-language translation of the purchase agreement before she signed it.  Plaintiff asserts that without her knowledge a Vietnamese-speaking salesperson checked a box on a purchase agreement document stating, “English only used in this sales transaction.” Ben Auto Haus has demonstrated triable issues of material fact precluding summary adjudication of plaintiff’s third cause of action.  Ben Auto Haus has presented evidence plaintiff negotiated the vehicle purchase in Vietnamese and English, and that Ben Auto Haus’s salesperson “sometimes” spoke English to plaintiff when they were signing the sales documents “[b]ecause all the documents are in English.”  Doan Depo. at 47:4-9; Doan Decl. ¶¶ 3, 4, 7.  Ben Auto Haus has also presented evidence plaintiff signed the document stating “English only used in this sales transaction,” and that its salesperson asked plaintiff whether he should check the box next to that statement, and “she said yes, because she is an engineer, so she can speak both languages.”  Doan Depo. at 75:19-76:2; Doan Decl. ¶ 8.  Because Ben Auto Haus has shown factual disputes regarding the third cause of action, plaintiff’s motion for summary adjudication of the third cause of action is denied. San Diego County Credit Union has also submitted evidence demonstrating triable issues of material fact on the third cause of action, including regarding whether plaintiff is fluent in English and whether plaintiff negotiated the vehicle purchase in Vietnamese.  See San Diego County Credit Union’s Responsive Separate Statement Nos. 4, 5, 6, 8 and 9 (and evidence cited therein); San Diego County Credit Union’s Additional Material Facts Nos. 1, 2, 3, 4, 5, 6, 7, 11, 13, 14 and 15. Defendant Ben Auto Haus, LLC to give notice.
4	Kells v. Blueridge Business Group LLC	Defendants Blueridge Business Group, Christopher A. Wills, Michael W. Meier, Linda L. Meier, Steven Pearson, and The Richard and Susan Zimbelman Revocable Trust dated April 23, 2018’s Motion for Attorneys’ Fees and Costs Defendants Blueridge Business Group, Christopher A. Wills, Michael W. Meier, Linda L. Meier, Steven Pearson, and The Richard and Susan Zimbelman Revocable Trust dated April 23, 2018 move for an award of attorneys’ fees and costs against plaintiff Patricia Kells as trustee of the Patricia Lynn Kells Living Trust.  The court granted defendants’ motion for summary judgment on March 9, 2023.  See 3/9/23 Order & 3/27/23 Judgment.  For the following reasons, defendants’ motion is granted.  Entitlement to Attorneys’ Fees Plaintiff is the widow of Robert T. Kells, Jr. (Robert) a former member of defendant Blueridge Business Group.  Robert initially owned 20% of Blueridge; Robert sold 5% of his interest in Blueridge in 2001 and 10% of his interest in 2003, leaving Robert with a 5% ownership share.  Robert died in 2008.  Plaintiff filed this lawsuit on July 16, 2021.  Plaintiff filed her original complaint in her individual capacity and alleged she was a 20% owner of Blueridge, which plaintiff alleged owned a property on Neville Street in Orange, California.  Plaintiff alleged Blueridge and “the other members” of Blueridge contested plaintiff’s alleged ownership of the property.  Plaintiff sought to quiet title to the property. Plaintiff filed a first amended complaint on February 24, 2022.  Plaintiff filed the first amended complaint as the trustee of the Patricia Lynn Kells Living Trust and “as the lawful representative of the estate of Robert T. Kells, Jr.”  The first amended complaint included Blueridge and added five new defendants.  Plaintiff alleged she was a 20% owner of Blueridge, which plaintiff alleged owned the Neville Street property.  Plaintiff alleged Blueridge had “recently sold” the property to a third party, and that plaintiff was identified as a 5% owner of Blueridge in the sales documents. The first amended complaint alleged causes of action for declaratory relief and breach of fiduciary duty. Plaintiff alleged a controversy had arisen and existed between plaintiff and defendants concerning Robert’s ownership interest in Blueridge because plaintiff contended Robert did not sell 15% of his interest and defendants contended he had.  Plaintiff also alleged the individual defendants breached fiduciary duties to Robert by failing to pay Robert the fair market value for his interest in Blueridge.  Plaintiff sought, among other declarations, declarations that Robert’s sales of his interests in Blueridge were invalid and that the individual defendants breached fiduciary duties to Robert.  Plaintiff also sought $967,510.40 in damages.  The court granted defendants’ motion for summary judgment on March 9, 2023, and thereafter entered judgment in defendants’ favor. Plaintiff’s claims in the operative first amended complaint were based on alleged breach of contract.  Plaintiff alleged in the first amended complaint that defendants breached fiduciary duties by failing to obtain an appraisal for the 2001 and 2003 sales of Robert’s interests in Blueridge, which led to an alleged undervaluation of Robert’s interests.  Plaintiff’s theory in the first amended complaint was that an appraisal would have reflected a higher fair market value and that the sums Robert received in exchange for selling his interests were too low.  Plaintiff alleged, inter alia: • “An actual controversy has arisen and now exists between Plaintiff and the Defendants concerning their respective rights and duties in that the Defendants claim that Robert Kells sold 15% of his interest in Blueridge LLC and the right to 15% of interest in the voting power of Blueridge LLC while the Plaintiff claims that he did not sell 15% of interests [sic] in Blueridge LLC according to the terms of Exhibit B [i.e., the Blueridge Operating Agreement, attached as Exhibit B to the first amended complaint] and that the individual Defendants violated their fiduciary obligations to Robert Kells as co-members of the Defendant Blueridge LLC . . . ”; • “[T]he operating agreement provided that the Defendant Blueridge LLC would be required to pay the Plaintiff the fair market value of the former member’s interest as determined by an independent appraiser selected by the Former Member and a committee of Remaining Members holding majority interest in the remaining membership”; and • “Defendants breached [fiduciary] duties by failing and refusing to follow the provisions of the operating agreement under Paragraph 7.3 thereof and by refusing to undertake the transaction to transfer Robert Kells[’s] interest in writing and according to fair and equitable terms.” Among other relief, plaintiff sought: • “[A] declaration that Robert Kells’[s] purported sale of his interest in the voting power of Blueridge LLC was invalid because it violated the terms of Exhibit B [i.e., the Blueridge Operating Agreement, attached as Exbibit B to the first amended complaint] and that the individual Defendants violated their fiduciary obligations to Robert Kells as co-members of the Defendant Blueridge LLC . . .”; and • “Attorney’s fees in Paragraph 12.11 of Exhibit B [i.e., the Blueridge Operating Agreement, attached as Exhibit B to the first amended complaint].” The Blueridge Operating Agreement, which, as noted above, plaintiff attached as Exhibit B to the first amended complaint, contains a prevailing party attorneys’ fees and costs provision as follows: “12.11 Attorney Fees.  In the event that any dispute between the Company and the Members or among the Members should result in litigation or arbitration, the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment.  Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law.  For purposes of this Section:  (i) attorney fees shall include, without limitation, fees incurred in the following:  (1) post-judgment motions; (2) contempt proceedings; (3) garnishment, levy and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation and (ii) prevailing party shall mean the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.”  First Amended Complaint Ex. B (¶ 12.11); Preciado Decl. Ex. 2 (¶ 12.11). Civil Code § 1717(a) states that in any action on a contract, where the contract specifically provides that attorneys’ fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys’ fees in addition to other costs.  See also Civ. Proc. Code § 1033.5(a)(10)(A) (attorneys’ fees authorized by contract are recoverable as costs under Civ. Proc. Code § 1032).  Reasonable attorneys’ fees shall be fixed by the court and shall be an element of the costs of suit.  Civ. Code § 1717(a). Plaintiff does not dispute that defendants are the prevailing parties, nor could she.  The court granted defendants’ motion for summary judgment and entered judgment in defendants’ favor. Plaintiff instead argues that the attorneys’ fees provision the Blueridge Operating Agreement does not apply to her because she “never contracted” with Blueridge Business Group or defendants’ counsel, she did not sign the Blueridge Operating Agreement, and she is not a party to the Blueridge Operating Agreement.  None of these arguments succeeds. Plaintiff alleged in her first amended complaint that she was a 20% owner of Blueridge.  She alleged the sales documents for the Neville Street property identified her as a 5% owner of Blueridge.  She alleged her claims were “based upon her position as Trustee of the Patricia Lynn Kells Living Trust which included the interest in Blueridge LLC,” and “as the lawful representative of the estate of Robert T. Kells Jr.”  In sum, plaintiff pursued this lawsuit on the theory that she had inherited or otherwise acceded to Robert’s membership interest in Blueridge, and based on that status sought court declarations and other relief against Blueridge and the other members premised on plaintiff’s interpretation of the Blueridge Operating Agreement.  Whether plaintiff sued Blueridge and the members as an alleged member of Blueridge or as an assignee of Robert’s membership interest, the attorneys’ fees provision in the contract over which plaintiff sued applies to plaintiff.  See First Amended Complaint Ex. B (¶ 12.11) (attorneys’ fees provision applies to any dispute between Blueridge and the members or among the members that results in litigation or arbitration); California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 605-06 (assignee of predecessor’s rights in contract between third party and predecessor that included attorneys’ fees provision “stepped into [predecessor’s] shoes as a matter of law,” including requirement to pay third party’s attorneys’ fees when assignee filed and lost lawsuit based on assigned contract).   Plaintiff also expressly sought an award of attorneys’ fees pursuant to the attorneys’ fees provision in the Blueridge Operating Agreement.  First Amended Complaint (Prayer for Relief) ¶ 5 (prayer for “attorney’s fees in Paragraph 12.11” of Blueridge Operating Agreement).  Defendants do not dispute that had plaintiff prevailed, plaintiff would have been entitled to an award of attorneys’ fees and costs from defendants pursuant to paragraph 12.11 of the Blueridge Operating Agreement.  See, e.g., Exarhos v. Exarhos (2008) 159 Cal.App.4h 898, 903-04 (under reciprocity rules of Civ. Code § 1717, where a nonsignatory plaintiff sues a signatory defendant in an action on a contract and the signatory defendant prevails, the signatory defendant is entitled to attorneys’ fees if the nonsignatory plaintiff would have been entitled to its fees had the plaintiff prevailed). Defendants prevailed in the case, and are the prevailing parties for purposes of an award of attorneys’ fees and costs. Amount of Attorneys’ Fees When determining a reasonable attorneys’ fees award using the lodestar method, the court begins by deciding the reasonable hours the prevailing party’s attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct noncontingent litigation of the same type.  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep’t of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.  The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate.  Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009. The court then has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award.  See Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.  The court is not required to impose a multiplier; the decision is discretionary.  Galbiso, 167 Cal.App.4th at 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241. As an initial matter, the court finds defendants’ counsel’s hourly rates reasonable (Attorney Partida $550 per hour; Attorney Carrigan $400 per hour; Attorney Preciado $400 per hour; Attorney Gangi $250 per hour; and Paralegal Li $150 per hour).  Having reviewed and considered defendants’ evidence, and having presided in similar cases, the court finds these hourly rates reasonable for attorneys and litigation staff in the community who conduct litigation of the same type as in this case.  The court has read and considered plaintiff’s arguments, defendants’ arguments, defendants’ counsel’s invoice, and the parties’ other evidence.  Based on that review, the court finds defendants’ request for reimbursement of 284.60 hours of attorney and paralegal time reasonable.  Defendants’ counsel expended those hours over two years of litigation, which included preparation of defendants’ motion for summary judgment, written discovery, defendants’ deposition, and efforts to resolve the case short of judgment.  Preciado Decl. ¶¶ 27, 30, 31, 37, 40.  The court awards defendants $117,390 in attorneys’ fees. Costs Defendants filed a costs memorandum on April 10, 2023, seeking $5,942.60 in costs (ROA 158).  Plaintiff has not filed a motion to strike or tax defendants’ costs.  Defendants are awarded $5,942.60 in costs.  Defendants to give notice and to submit by August 24, 2023 a proposed amended judgment reflecting the above attorneys’ fees and costs award.
5	Ocampo v. Kaford	Defendants Janet Kaford and Lawrence Kaford’s Motion to Compel Responses to Special Interrogatories Defendants Janet Kaford and Lawrence Kaford move to compel plaintiff Cornelio Ocampo to provide responses to defendants’ Special Interrogatories (Set One).  Plaintiff has not served responses to the Special Interrogatories (Set One).  For the following reasons, defendants’ unopposed motion is granted. Due to plaintiff’s failure to serve timely responses to the interrogatories, plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .”  Cal. Civ. Proc. Code § 2030.290(a).  Plaintiff Cornelio Ocampo shall provide responses, without objections, to defendants’ Special Interrogatories (Set One) by August 28, 2023. Defendants’ request for sanctions is granted.  Plaintiff Cornelio Ocampo shall pay sanctions in the amount of $200.00 to defendants by August 28, 2023.  See, e.g., Cal. Civ. Proc. Code § 2023.010(d); id. § 2030.290(c). Defendants to give notice. Defendants Janet Kaford and Lawrence Kaford’s Motion to Compel Responses to Form Interrogatories Defendants Janet Kaford and Lawrence Kaford move to compel plaintiff Cornelio Ocampo to provide responses to defendants’ Form Interrogatories (Set One).  Plaintiff has not served responses to the Form Interrogatories (Set One).  For the following reasons, defendants’ unopposed motion is granted. Due to plaintiff’s failure to serve timely responses to the interrogatories, plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .”  Cal. Civ. Proc. Code § 2030.290(a).  Plaintiff Cornelio Ocampo shall provide responses, without objections, to defendants’ Form Interrogatories (Set One) by August 28, 2023. Defendants’ request for sanctions is granted.  Plaintiff Cornelio Ocampo shall pay sanctions in the amount of $200.00 to defendants by August 28, 2023.  See, e.g., Cal. Civ. Proc. Code § 2023.010(d); id. § 2030.290(c). Defendants to give notice.
6	Paquin v. Capistrano Unified School District	Plaintiff Deborah Paquin’s Motion for Order Declaring Lien Invalid Plaintiff Deborah Paquin moves for an order declaring a lien asserted by Attorney Martin Jerisat and Bike Legal invalid.  Jerisat opposes.  Neither Bike Legal nor defendant Capistrano Unified School District filed an opposition.  For the following reasons, plaintiff’s motion is denied. Attorneys Jerisat, Frank Sariol, and Sariol Legal filed this lawsuit on plaintiff’s behalf on August 21, 2019.  Attorney Frank Sariol substituted out as plaintiff’s counsel by means of a substitution of counsel filed on May 24, 2021.  ROA 66.  Plaintiff’s motion does not seek an order declaring the lien asserted by Sariol Legal invalid.  Attorney Steven R. Young became plaintiff’s counsel of record by means of the same substitution of counsel.  ROA 66.  On July 20, 2021 plaintiff filed a Notice of Association Counsel stating plaintiff associated Jerisat as counsel with Young.  ROA 77.  On December 6, 2022 plaintiff filed a Notice of Disassociation of Counsel stating the “Law Offices of Martin Jerisat . . . is no longer representing plaintiff and has disassociated with the Law Offices of Steven R. Young . . . .”  ROA 237.  The court file does not contain a substitution of counsel substituting Jerisat out as plaintiff’s counsel, a motion to be relieved as plaintiff’s counsel filed by Jerisat, or an order granting a motion to be relieved as counsel.    Plaintiff filed a Notice of Settlement on January 26, 2023.  On February 14, 2023, Jerisat, Sariol Legal, and Bike Legal filed a “Notice of Lien for Attorney’s Fees and Costs.”  ROA 337.  The lien states that all parties should take notice that “Martin Jerisat, Sariol Legal, [and] Bike Legal, counsel of record for Plaintiff, hereby assert[ ] a lien against any recovery, settlement or judgment rendered in favor of Plaintiff in this action, to secure payment of legal services rendered and costs and expenses advanced on their [sic] behalf.” Plaintiff seeks an order declaring the lien invalid.  Plaintiff asserts Jerisat and Bike Legal’s lien claim is “unlawful” because neither Jerisat nor Bike Legal has a written fee agreement with plaintiff.  Plaintiff states in her declaration that she never signed a fee agreement with Jerisat, the Law Offices of Martin Jerisat, or Bike Legal.  Paquin Decl. ¶¶ 2-7.  Plaintiff asserts Jerisat and Bike Legal should seek payment from plaintiff’s counsel, not plaintiff.  Jerisat asserts plaintiff signed a retention agreement with Sariol Legal, which Sariol Legal later assigned to Jerisat.  Jerisat states he worked at Sariol Legal as an “of counsel,” and that he was “not a paid employee” of Sariol Legal.  Jerisat Decl. ¶ 3.  Jerisat has not presented any evidence plaintiff signed a written retention agreement with Sariol Legal, much less with him.  He attaches as Exhibit B to his declaration a redacted portion of one page of a document entitled “Attorney-Client Contingent Fee Agreement” on “Frank R. Sariol, P.C. dba Sariol Legal Center” letterhead.  Jerisat Decl. Ex. B.  The visible portion of the redacted page states:  “This Attorney-Client contingent fee contract (the ‘Agreement’) is the written fee contract that California law requires lawyers to have with their clients.  It is between Frank R. Sariol of Sariol Legal Center (Attorney) and you, Deborah Paquin, (‘Client’).”  Id.  The visible portion of the page does not contain plaintiff’s signature, does not state Jerisat is a party to the agreement, and does not state any terms including, as relevant here, any term memorializing any attorney’s lien rights.  In addition to his claim that he may enforce the written retention agreement plaintiff allegedly signed with Sariol Legal, Jerisat also argues he may assert a quantum meruit lien against plaintiff in the absence of a written retention agreement. “Appellate courts have consistently held that the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorney lien on the judgment.  [Citations.]  The trial court does have fundamental jurisdiction over the subject matter and over the parties.  Nevertheless, because the attorney is not a party to the underlying action and has no right to intervene, the trial court acts in excess of its jurisdiction when it purports to determine whether the attorney is entitled to foreclose a lien on the judgment.  [Citations.]  Nor can the court entertain a motion to terminate the lien.  [Citation.] After the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it.  [Citations.]  An order within the underlying action purporting to affect an attorney's lien is void.”  Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1173; see also id. at 1174 (“It is apparent that the trial court had no jurisdiction to determine the existence of an attorney's lien.  Whether McCoy and the 11 plaintiffs had a direct contract and whether that contract impliedly created an attorney's lien are questions of fact to be decided in an independent action brought by McCoy to enforce his lien claim.  [Citation.]  They are not questions to be resolved in the underlying action.”); Brown v. Superior Court (2004) 116 Cal.App.4th 320, 329 (“Under Carroll and the numerous cases cited in Carroll, the trial court in the VMT action had no authority to determine the existence or validity of Brown's claimed lien on the proceeds of the VMT judgment.  This means that while Brown was entitled to assert his lien claim against the proceeds of the VMT judgment by filing a notice of lien in the VMT action, the trial court had no power to determine in that action whether Brown's lien claim was valid or invalid.  Thus, the trial court correctly denied Brown's motion for an order determining the amount and priority of his lien and directing VMT to pay all sums held in the blocked account to him until his lien was satisfied.”). Neither party cites any authority holding that the court may properly determine in this case whether Jerisat and Bike Legal’s lien is valid or invalid.  The above authorities hold that the court may not do so.  Plaintiff’s motion for order declaring Jerisat and Bike Legal’s lien invalid is therefore denied. Clerk to give notice. Order to Show Cause Re Dismissal Plaintiff filed a Notice of Settlement on January 26, 2023.  No party has shown any reason this case should not be dismissed.  The case is dismissed without prejudice.  The court will issue a signed order of dismissal. Clerk to give notice.
7	Pateadores IER v. Mission Viejo Pateadores, Inc.	Plaintiff Pateadores IER’s Motion to Compel Further Responses Plaintiff Pateadores IER moves to compel further responses and document production from defendant Mission Viejo Pateadores, Inc. (MVPI) in response to plaintiff’s Requests for Production (Set One) Nos. 1, 7, 9 and 10.  For the following reasons, plaintiff’s motion is granted. Plaintiff alleges it is an unincorporated association comprised of parents and guardians of youth soccer parents of the former Redlands chapter of the Pateadores Soccer Club.  Second Amended Complaint (SAC) ¶ 1.  Defendant MVPI operates as the Pateadores Soccer Club, which consists of various geographical chapters.  Id. ¶ 2.  Defendant Brosnan is the Vice President of Operations and the Secretary of the Board of Directors of MVPI.  Id. ¶ 3.  Defendant Briggs has served as the Chief Executive Officer of MVPI, the Chief Financial Officer of MVPI, and Chairman of the Board of Directors of MVPI.  Id. ¶ 4. Plaintiff alleges that in 2022 it notified MVPI that it was severing its relationship with MVPI at the end of the 2021-22 season to partner with an organization with higher level soccer training closer to plaintiff’s geographic location.  Id. ¶ 10.  Plaintiff alleges that in response to its severance notice, MVPI retaliated against plaintiff by, inter alia, withdrawing necessary permits and terminating soccer coaches.  Id. ¶ 11.  Plaintiff further alleges that plaintiff overpaid MVPI certain fees and dues and that MVPI has not repaid the overpaid sums.  Id. ¶¶ 12-22.  Plaintiff alleges MVPI will not provide plaintiff backup documentation regarding the fees because Brosnan misappropriated funds generated by MVPI from its local chapters, including plaintiff.  Id. ¶ 18; see also id. ¶ 21.  Plaintiff alleges Riggs and the MVPI Board of Directors know about Brosnan’s conduct, and condoned and ratified her conduct.  Id. ¶ 19.  Plaintiff’s second amended complaint alleges causes of action for (i) money had and received and (ii) conversion of $71,294.   Request Nos. 1, 9 and 10:  Granted.  The requests seek relevant information and/or information reasonably calculated to lead to the discovery of admissible evidence.  MVPI has produced copies of its redacted bank statements in response to Request Nos. 1, 9 and 10.  Plaintiff asserts the court should compel MVPI to produce unredacted copies of the bank statements because the produced copies are so heavily redacted plaintiff cannot decipher them.  The court has reviewed the redacted copies attached as Exhibit 4 to the Zemming Declaration.  The redactions render the documents difficult, if not impossible, to understand.  MVPI has not presented any persuasive argument it should not produce unredacted copies of these documents subject to the Stipulated Protective Order entered in this case on January 30, 2023.  The Stipulated Protective Order also addresses any confidentiality concerns.  MVPI’s relevance objections are overruled. Request No. 7:  Granted.  The request seeks relevant information and/or information reasonably calculated to lead to the discovery of admissible evidence.  MVPI asserts it need not produce any responsive records because APS is a separate entity and MVPI does not have custody of or control over that entity’s books and records.  The request does not ask MVPI to obtain APS’s books and records.  The request seeks documents pertaining to APS in MVPI’s possession, custody or control.  The Stipulated Protective Order addresses any confidentiality concerns.  MVPI’s relevance objection is overruled.  MVPI has not substantiated its burden, oppression and overbreadth objections with evidence, and thus those objections are overruled.  MVPI shall provide further, complete, verified, Code-compliant responses to Request Nos. 1, 7, 9 and 10 by August 28, 2023, and MVPI shall produce all nonprivileged documents responsive to Request Nos. 1, 7, 9 and 10 by August 28, 2023.  If MVPI has no responsive documents in its possession, custody or control, MVPI shall serve a further, verified response so stating.  Should MVPI withhold any responsive documents based on any privilege, MVPI shall also serve by August 28, 2023 a privilege log identifying all documents defendant has withheld from production on the basis of a privilege(s).  The log shall identify the privilege and set forth sufficient information for plaintiff and the court, if necessary, to evaluate the privilege claims.  Plaintiff’s and MVPI’s requests for sanctions are denied. Plaintiff to give notice.
8	Reyes v. City of Santa Ana	Defendants City of Santa Ana, Kameron Henderson, Matthew D. Guzman, Justin L. Collins, Jonathon Perez, Anh Tu S. Phan, Kenneth Gray, and Daniel Carrillo’s Demurrer to Complaint Defendants City of Santa Ana, Kameron Henderson, Matthew D. Guzman, Justin L. Collins, Jonathon Perez, Anh Tu S. Phan, Kenneth Gray, and Daniel Carrillo’s demurrer to plaintiff Rogelio Reyes’s complaint.  Defendant Matthew D. Wharton is not a party to the demurrer.  Plaintiff did not file an opposition.  For the following reasons, defendants’ demurrer is overruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7. Plaintiff’s complaint alleges one cause of action for “false arrest/false imprisonment.”  Defendants argue plaintiff cannot state this claim against defendants Henderson, Guzman, Collins, Perez, Phan, Gray, and Carrillo under Penal Code section 847(b)(1) because a federal district court has already ruled those defendants had probable cause to arrest plaintiff.  Defendants argue that because plaintiff allegedly cannot state this claim against defendants Henderson, Guzman, Collins, Perez, Phan, Gray, and Carrillo, plaintiff also cannot state the claim against the City of Santa Ana. Plaintiff initially filed a lawsuit addressing the events underlying this case in federal district court.  The federal district court granted summary judgment for defendants, ruling, inter alia, that the individual defendants had probable cause to arrest plaintiff, that Penal Code section 847(b)(1) applied, and that plaintiff therefore could not prevail on his false arrest/false imprisonment cause of action. The federal appellate court affirmed in part and reversed in part the district court’s summary judgment order.  The appellate court reversed the order granting summary judgment on plaintiff’s false arrest/false imprisonment claim.  The appellate court ruled that while probable cause is necessary to establish an arrest’s lawfulness, it is not by itself sufficient to do.  The court stated that Penal Code section 847(b)(1) does not incorporate federal qualified immunity concepts.  The court ruled:  “Because the district [court] misapplied California law and there are genuine issues of material fact regarding whether the Officers violated Appellant’s constitutional rights when they arrested him, we reverse summary judgment on the California false arrest claim and remand.”  After remand, plaintiff filed a second amended complaint alleging five causes of action, including false arrest/false imprisonment.  Defendants moved for summary judgment as to the false arrest/false imprisonment claim.  The district court denied the motion.  The district court ruled:  “This Court previously found that the arrest by [the] Officer Defendants was unlawful because it was a warrantless arrest on the curtilage of Plaintiff’s home, conducted in the absence of exigent circumstances, even when the Officer Defendants had probable cause. . . .  California Penal Code Section 847(b)(1) does not apply.  Accordingly, the court denies Defendants’ Motion for Partial Summary Judgment as to Plaintiff’s claim for false arrest or false imprisonment under California law.” The district court ultimately adjudicated or dismissed all of plaintiff’s claims other that the false arrest/false imprisonment claim, over which the district court declined to exercise supplemental jurisdiction.  Plaintiff thereafter filed this lawsuit in state court. Defendants assert collateral estoppel (i.e., issue preclusion) precludes plaintiff from relitigating in this case the district court’s finding that the individual defendants had probable cause to arrest plaintiff.  The court cannot determine on this sparse record whether collateral estoppel applies to bar litigation of the alleged probable cause to arrest plaintiff.  Even if the court could make that determination at this juncture, however, defendants’ demurrer would still be overruled.  The court also cannot determine based on the pleadings whether Penal Code section 847(b)(1) applies.  This record is insufficient for the court to make that determination at this stage. Defendants’ Request for Judicial Notice is granted.  A court may take judicial notice of the existence of a document in a court file, including the truth of results reached, but a court may not take judicial notice of the truth of hearsay statements in decisions and court files.  Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.  Defendants to give notice.
9	Sanchez v. Gaw	Defendants Patrick Gaw and Stephanie Ng’s Demurrer to First Amended Complaint Defendants Patrick Gaw and Stephanie Ng demur to the fourteenth cause of action for fraud in plaintiffs David Sanchez, Amanda Sanchez, and Alyssa Sanchez’s first amended complaint.  Plaintiffs filed an opposition to the demurrer, in which plaintiffs assert defendants served the demurrer papers late.  Plaintiffs state in their opposition that they waive the late service issue.  Opp. at 1:18.  For the following reasons, defendants’ demurrer is sustained with leave to amend. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7. The elements of fraud by misrepresentation are:  (1) a misrepresentation; (2) knowledge of its falsity; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance on the misrepresentation; and (5) resulting damages.  Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.  Each element of an intentional misrepresentation cause of action must be pleaded with specificity.  Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.  General and conclusory allegations do not suffice.  Lazar, 12 Cal.4th at 645.  The particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.  Id. Plaintiffs’ fraud cause of action incorporates the preceding paragraphs of the complaint, and alleges:  “Defendants had ownership, and/or control of the subject premises at the time of Plaintiffs[‘] injuries.  Prior to Plaintiffs renting the subject premises, Defendants knew, or should have known, about the dangerous conditions within the subject premises and that exposure to them was, and is, a health hazard that could contribute to Plaintiff’s injuries.  Defendants knew of the presence of water leaks and mold prior to the Plaintiffs executing the lease agreement and misrepresented to the Plaintiffs that said water leaks and mold did not exist.  This was a lie.  Despite this knowledge, Defendants knowingly told the Plaintiffs the subject premises were free of said mold and water leaks.  These statements were knowingly false and were made with the intention to deceive and/or induce reliance, to which did induce justifiable reliance, resulting in damages to Plaintiffs.  The Defendants’ conduct was willful [and] malicious and shocks the conscience of any reasonable person.  Said conduct was despicable and caused significant damages to the Plaintiffs, to which will be proven at trial.”  First Amended Complaint ¶ 92.  The court sustained defendants’ prior demurrer to this cause of action because, while this claim appeared to allege defendants made misrepresentations to plaintiffs about the condition of the property to induce plaintiffs to rent it, the complaint contained no allegations about any statements defendants made before plaintiffs rented the property, much less statements plaintiffs contended were not true.  See 6/8/23 Order. In their first amended complaint, plaintiffs have added allegations that defendants knew about water leaks and mold before plaintiffs executed the lease and misrepresented to plaintiffs that water leaks and mold did not exist, which plaintiffs allege “was a lie.”  FAC ¶ 92; see also FAC ¶ 12 (“Defendants verbally and in writing told the Plaintiffs there was no mold and no water leaks in the subject premises. . . .  However, the Defendant’s [sic] answer was a lie.  The Defendants intentionally and with malice misrepresented to the Plaintiffs, prior to signing the lease agreement, there were no water leaks and[/]or mold in the subject premises.”).  These new allegations do not remedy the deficiencies in plaintiffs’ fraud claim.  The new allegations are not sufficiently specific to state a fraud claim against defendants.  As noted above and in the court’s June 8, 2023 order, general and conclusory allegations do not suffice to state a fraud claim.  Lazar, 12 Cal.4th at 645.  The particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.  Id.  Plaintiffs’ new allegations do not include facts showing how, when, where, to whom, and by what means the alleged representations were tendered.  Plaintiffs also variously allege “defendants” made misrepresentations, and “defendant” made misrepresentations.  Plaintiffs must allege which defendant said what to whom, as well as when, where, and by what means.  Defendants’ demurrer to the fourteenth cause of action is sustained with leave to amend. Should plaintiffs desire to file an amended complaint that addresses the issues in this ruling, plaintiffs must file and serve it by August 28, 2023. Defendants’ request for judicial notice is denied.  It is not necessary to seek judicial notice of documents in the court file for this case. Defendants to give notice. Defendants Patrick Gaw and Stephanie Ng’s Motion to Strike First Amended Complaint Defendants Patrick Gaw and Stephanie Ng move to strike the punitive damages allegations and prayer from plaintiffs David Sanchez, Amanda Sanchez, and Alyssa Sanchez’s first amended complaint.  For the following reasons, defendants’ motion is granted in part and denied in part. To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim.  Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.  “To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff ‘must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’”  Penner v. Falk (9184) 153 Cal.App.3d 858, 867. Plaintiffs’ conclusory punitive damages allegations do not meet this standard, and plaintiffs’ factual allegations do not describe circumstances of oppression, fraud or malice, or willful and deliberate failure by defendants to avoid the alleged consequences of their conduct.  Defendants’ motion to strike paragraphs 68 (15:26-16:1), 77 (17:1-5) and 98 (19:23-20:2) and Prayer for Relief paragraph C (18:10-11) is granted with leave to amend.  Defendants’ motion to strike paragraph 92 (18:25-19:7) is denied as moot light of the court’s concurrent ruling on defendants’ demurrer.  Should plaintiffs desire to file an amended complaint that addresses the issues in this ruling, plaintiffs must file and serve it by August 28, 2023. Defendants’ request for judicial notice is denied.  It is not necessary to seek judicial notice of documents in the court file for this case. Defendants to give notice.
10	Serrano v. MicroVention, Inc., et al.	Defendants MicroVention, Inc. and Kristin Leary’s Demurrer to Complaint Defendants MicroVention, Inc. and Kristin Leary demur to the five causes of action in plaintiff Evelyn Serrano’s complaint.  For the following reasons, defendants’ demurrer is overruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7. Plaintiff alleges she worked at MicroVention for five years beginning in January 2018.  Plaintiff alleges that MicroVention hired Leary as its Chief People Officer in January 2022, and that plaintiff reported directly to Leary.  Plaintiff alleges she and Leary “had an excellent working relationship from January 2022 to July 2022.”  Plaintiff alleges she took a medical leave in July 2022, and that when she informed Leary about the leave, Leary “expressed frustration [and] unhappiness, and immediately responded, ‘do you want me to post your job?’” Plaintiff alleges on information and belief that during her leave, Leary told members of plaintiff’s team that “they do not need to know why but that after plaintiff’s return, plaintiff’s team would no longer be reporting to plaintiff.”  Plaintiff alleges that the day after she returned to work on December 5, 2022, Leary told her that she had discovered performance issues with plaintiff’s job performance that plaintiff must remedy.  Plaintiff alleges that from December 7, 2022 to January 12, 2023, Leary “began to nitpick all of plaintiff’s work, e-mails, and demonstrated a clear pattern of ‘papering’ the file to terminate plaintiff.”  On January 12, 2023 MicroVention terminated plaintiff. Defendants argue plaintiff has not sufficiently alleged exhaustion of administrative remedies.  Plaintiff alleges she “timely filed her complaint with the State of California’s Department of Fair Housing and Employment Act and has received a right to sue letter.”  Complaint ¶ 24.  At this juncture, this allegation is sufficient.  The cases on which defendants rely, i.e., Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1345, Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, and Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, do not hold that plaintiff’s allegation is insufficient at this stage.  Defendants’ demurrer based on an alleged inadequacy of plaintiff’s pleading of exhaustion of administrative remedies is overruled. Plaintiff’s first cause of action alleges discrimination based on disability and medical leave in violation of the Fair Employment and Housing Act (FEHA).  Plaintiff alleges that “[t]o the extent that plaintiff’s protected disability and protected leave were motivating factors contributing to plaintiff’s termination by defendants, said act by defendants constitutes employment discrimination . . . .” MicroVention contends plaintiff has not alleged she suffered from a disability or that the alleged disability limited a major life activity.  MicroVention also argues plaintiff has not alleged a nexus between her alleged disability and an adverse employment action. Taking a medical leave of absence to address health issues, which prevented a plaintiff from working, constitutes a physical disability, such that an employer cannot discriminate against an employee for taking such a leave.  Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584, 588; Gov. Code, §§ 12940, 12926(m).  This is what plaintiff alleges.  Complaint ¶ 17. Plaintiff also alleges her supervisor, defendant Leary, knew of plaintiff’s alleged physical disability, and that MicroVention, through Leary, discriminated against plaintiff for the physical disability and for taking a medical leave of absence.  Complaint ¶¶ 18-22.  These allegations state a sufficient nexus between plaintiff’s disability and leave of absence and the adverse employment action. MicroVention also asserts plaintiff has not alleged she was capable of performing the essential functions of her job, whether with or without reasonable accommodation.  Plaintiff does not allege she required an accommodation after returning from her medical leave.  Instead, she alleges she was an exemplary employee, who consistently exceeded expectations in performance reviews.  Complaint ¶¶ 14-15.  In other words, plaintiff alleges she should not have been terminated, but instead was discriminated against for taking a medical leave of absence, which ultimately led to plaintiff’s termination.  Id. ¶¶ 16, 18-22.  MicroVention’s demurrer to the first cause of action is overruled. Plaintiff’s second cause of action alleges retaliation in violation of the FEHA.  Plaintiff alleges that during her employment with defendants, she “engaged in legally protected activity by informing defendant of plaintiff’s health concerns and qualified disabilities, yet was retaliated against based on such complaints and/or the failure to properly investigate such complaints.  Plaintiff was further retaliated against for taking a qualified protected leave.  [¶]  Plaintiff was subjected to adverse employment actions as described above, including but not limited to her termination of employment and the pattern of systemic retaliation that preceded it as described above.  [¶]  The foregoing described above adverse employment actions were taken in part or in whole because of plaintiff’s legally protected activity as described above.” MicroVention argues plaintiff has not alleged facts showing she engaged in a protected activity.  MicroVention also argues plaintiff has not alleged a causal link between any alleged protected activity and an adverse employment action. Plaintiff alleges a protected activity 9(i.e., taking a medical leave of absence), that she informed defendants of her need to take a medical leave of absence, and that she was retaliated against because she took a medical leave of absence.  Complaint, ¶¶ 16-22.  These allegations are sufficient to state a retaliation claim.  MicroVention’s demurrer to the second cause of action is overruled. Plaintiff’s third cause of action alleges wrongful termination in violation of public policy.  Plaintiff alleges:  “The above referenced actions of Defendants constitute a wrongful termination of plaintiff in violation of the public policy of the State of California as reflected in its laws and policies.  Said laws include, but are not limited to, Article I, Section 8 of the Constitution, as well as Government Code § 12900, et seq.  Defendants were obligated to refrain from discharging plaintiff, or any employee, for reasons which violate or circumvent said policies or objectives which underlie each.” As discussed above, plaintiff’s first and second causes of action state claims for violation of the FEHA.  Plaintiff’s third cause of action likewise alleges sufficient facts to state a claim for wrongful termination in violation of public policy.  MicroVention’s demurrer to the third cause of action is overruled. Plaintiff’s fourth cause of action alleges failure to engage in the interactive process in violation of the FEHA.  Plaintiff alleges defendants knew, or should have known, “of the need to accommodate plaintiff’s health concerns, including the need to engage in the interactive process to determine how to achieve a reasonable alternative for plaintiff.  However, defendants failed and refused to engage in the interactive process with plaintiff.” MicroVention argues plaintiff has not alleged she triggered MicroVention’s duty to engage in the interactive process, as there are no allegations plaintiff requested an accommodation.  An employer’s obligation to engage in the interactive process is triggered either by an employee’s request for accommodation or by the employer's recognition of the need for accommodation.  See, e.g., Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076, 1098-1099. Plaintiff alleges she had a physical disability that required her to take a medical leave of absence for nearly five months.  Complaint ¶ 17.  Plaintiff alleges MicroVention, through Leary, knew of plaintiff’s physical disability and need for a medical leave of absence, that Leary was openly hostile to plaintiff’s leave of absence, and that Leary created allegedly pretextual reasons to reprimand plaintiff, which, in plaintiff’s view “demonstrated a clear pattern of ‘papering’ the file to terminate Plaintiff.”  Plaintiff alleges MicroVention used these pretextual reasons to subsequently terminate plaintiff’s employment.  Complaint ¶¶ 18-22, 50-51. Plaintiff does not allege she requested an accommodation other than the leave of absence, or that she needed an accommodation other than the leave of absence.  But accepting plaintiff’s allegations as true as the court must on demurrer, MicroVention’s obligation to engage in the interactive process was triggered when it learned of plaintiff’s physical disability that required her to take a medical leave of absence.  MicroVention’s demurrer to the fourth cause of action is overruled. Plaintiff’s fifth cause of action alleges negligent infliction of emotional distress against MicroVention and Leary.  Plaintiff alleges defendants “owed plaintiff a duty of care not to cause plaintiff emotional distress, including the duty to ‘take all reasonable steps necessary to prevent discrimination and harassment.’  Cal. Gov. Code § 12940(k).”  Plaintiff alleges that “as alleged herein and above, defendants engaged in discriminatory, harassing, and retaliatory actions against plaintiff with wanton and reckless disregard of the probability of causing plaintiff to suffer extreme emotional distress. . . .  [D]efendants knowingly harassed plaintiff based on her disability, causing her severe emotional distress.  Defendants further caused plaintiff severe emotional distress by conspiring against plaintiff and terminating her employment for discriminatory and retaliatory reasons.” Defendants contend plaintiff cannot state a claim for negligent infliction of emotional distress because the claim falls within the exclusive jurisdiction of the California Workers’ Compensation Act.  Allegations of unlawful discrimination and retaliation in violation of the FEHA fall outside the compensation bargain, such that emotional distress caused by such discrimination and retaliation are not subject to workers’ compensation exclusivity.  Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 100, 101; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492; see also Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 745 (workers’ compensation exclusivity applies “so long as the basic conditions of compensation are otherwise satisfied, and the employer’s conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship); Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658 (where “plaintiff’s emotional distress claims are based on his employer’s violation of fundamental public policies of this state, such misconduct cannot be considered a normal part of the employment relationship and the plaintiff’s remedy is not confined to workers’ compensation”).  Defendants’ demurrer to the fifth cause of action is overruled. Defendants are ordered to file and serve an answer by August 28, 2023 Plaintiff to give notice. Defendants MicroVention, Inc. and Kristin Leary’s Motion to Strike Defendants MicroVention, Inc. and Kristin Leary move to strike the punitive damages allegations and prayer in plaintiff Evelyn Serrano’s complaint (Complaint ¶¶ 34, 48, 54 and 63; Prayer for Relief ¶ 4.  For the following reasons, defendants’ motion to strike is denied. To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim.  Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.  “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.  [Citations.]  In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.  [Citations.]  In ruling on a motion to strike, courts do not read allegations in isolation.”  Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. Plaintiff alleges defendants intentionally engaged in despicable conduct, namely, they discriminated and retaliated against her for having a physical disability that required her to take a medical leave of absence.  Plaintiff alleges that when she advised Leary of the need for the medical leave, “Leary expressed frustration, unhappiness, and immediately responded ‘do you want me to post your job?’”  Complaint, ¶ 18.  Plaintiff alleges that before she returned from the leave of absence, plaintiff’s team was told they would no longer be reporting to plaintiff upon her return.  Complaint ¶ 21.  Plaintiff alleges that when she returned from the leave of absence, defendants suddenly began criticizing her work performance, even though plaintiff had, before the leave, consistently received outstanding performance reviews.  Complaint ¶¶ 14-15, 19-20.  Plaintiff alleges the negative feedback was done to “’paper’” the file to justify plaintiff’s eventual termination.  Complaint, ¶¶ 19-20, 22.  These allegations state sufficient facts to state a claim for punitive damages. Plaintiff also alleges MicroVention and Leary were, inter alia, each other’s agents, employees, and representatives, and that they acted in concert with each other.  Complaint ¶¶ 4, 6-11.  These allegation, read in the context of the entire pleading, are sufficient to satisfy the requirement that MicroVention either authorized or ratified Leary’s conduct, or was itself “guilty of oppression, fraud or malice.”  Civ. Code § 3294(b). Defendants are ordered to file and serve an answer by August 28, 2023. Plaintiff to give notice. Case Management Conference The trial is scheduled for January 27, 2025 at 9:00 a.m. in Department C13. Clerk to give notice.
11	Valles v. General Motors LLC	Plaintiff Pedro Valles’s Motion to Compel Further Responses to Requests for Production Plaintiff Pedro Valles moves to compel defendant General Motors LLC to provide further responses and document production in response to plaintiff’s Requests for Production (Set One) Nos. 8, 9, 10, 13, 15, 17, 19, 21, 22, 27, 29, 30, 31, 32, 33 and 40.  For the following reasons, plaintiff’s motion is granted in part and denied in part. Plaintiff served his Requests for Production (Set One) on January 28, 2022.  On April 29, 2022 defendant served responses.  Plaintiff’s counsel sent defense counsel a meet and confer letter on June 3, 2022.  Goldsmith Decl. Ex. 3.  Defense counsel replied to plaintiff’s counsel’s letter by letter on June 13, 2022.  Id. Ex. 4.  In the June 23, 2022 letter, defendant agreed to produce (i) additional responsive “TSBs” (Request No. 29); (ii) upon entry of a protective order, defendant’s “Warranty Policy and Procedure Manual and [defendant’s] policies and procedures used to evaluate lemon law claims and repurchase requests made under the Song-Beverly Warranty Act ‘during the RELEVANT PERIOD as it relates to Plaintiffs and the SUBJECT VEHICLE’” (Request Nos. 13, 21, 22, 30, 31 and 40); and (iii) upon entry of a protective order, “other customer complaints within [defendant’s] ESI database that are substantially similar to Plaintiff’s complaint(s) concerning the alleged defects for vehicles purchased in California of the same year, make and model as the Subject Vehicle” (Request Nos. 32 and 33).  Plaintiff’s counsel states in his declaration that he signed and returned a protective order.  Goldsmith Decl. ¶ 11.  No protective order has been entered in this case.  Plaintiff’s counsel also states that in addition to sending the June 3, 2022 letter, plaintiff’s counsel “placed telephone calls to Defendant’s counsel, exchanged additional emails and granted Defendant’s counsel extensions of time to provide the promised documents and supplemental responses.”  Goldsmith Decl. ¶ 8.  None of the exhibits to the Goldsmith Declaration reflects the substance of the telephone calls or any further meet and confer efforts by email or otherwise regarding the above requests for production after defendant’s June 13, 2022 letter. As an initial matter, defendant has not offered any reasons it should not be compelled to produce the documents it agreed to produce.  Accordingly, plaintiff’s motion to compel further responses and document production in response to Request Nos. 13, 21, 22, 29, 30, 31, 32, 33 and 40 is granted to the extent defendant has not produced the documents it agreed to produce in its June 13, 2022 letter.  Defendant shall provide further, complete, verified, Code-compliant responses to Request Nos. 13, 21, 22, 29, 30, 31, 32, 33 and 40 by August 28, 2023, and defendant shall produce all nonprivileged documents responsive to Request Nos. 13, 21, 22, 29, 30, 31, 32, 33 and 40 as agreed in defendant’s June 13, 2022 letter on or before August 28, 2023.  Should defendant withhold any responsive documents based on any privilege, defendant shall also serve by August 28, 2023 a privilege log identifying all documents defendant has withheld from production on the basis of a privilege(s).  The log shall identify the privilege and set forth sufficient information for plaintiff and the court, if necessary, to evaluate the privilege claims.  Plaintiff’s motion to compel defendant to provide further responses and document production other than as set forth in the immediately preceding paragraph is denied.  Plaintiff’s motion does not demonstrate plaintiff conducted a reasonable and good faith meet and confer effort before filing this motion.  The meet and confer requirement is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.  Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.  There must be a serious effort at negotiation and informal resolution.  Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.  The parties’ papers do not reflect “a serious effort at negotiation and informal resolution,” or an “attempt to talk the matter over, compare [counsel’s] views, consult, and deliberate.”  Clement, 177 Cal.App.4th at 1294.  Indeed, there is no evidence plaintiff discussed any of the specific issues presented by this motion with defendant after receiving defense counsel’s June 13, 2022 letter.  Plaintiff’s counsel states he “placed telephone calls to Defendant’s counsel,” but none of the exhibits attached to counsel’s declaration describes the substance of any such calls—or even reveals whether plaintiff’s counsel actually spoke with defense counsel.  Plaintiff’s counsel states he “exchanged additional emails” with defense counsel about the requests, but none of the emails attached to counsel’s declaration reflects correspondence about the requests, much less an “attempt at an informal resolution of each issue presented by the motion.”  Civ. Proc. Code § 2016.040 (emphasis added).  Before plaintiff foists numerous requests for production on the court for resolution, plaintiff must demonstrate he made a serious attempt to resolve each request informally.  Plaintiff has not done so, and plaintiff’s motion is therefore denied, other than as set forth above. Plaintiff’s request for an order that defendant serve a differently-worded verification is denied.  Defendant to give notice.
12	Villamira Homeowners Association v. Bergman	No tentative ruling will be posted for this matter.
13	Warner v. FCA US, LLC	Off calendar.