LAW AND MOTION CALENDAR

Judge Nathan Vu

Department N15

Hearing Date and Time: August 28, 2023 @ 08:30 AM

TENTATIVE RULINGS: The court will endeavor to post tentative rulings on this website by 5:00 p.m. on the day before the hearing. However, ongoing proceedings may prevent posting by that time or the court may have no tentative ruling on a matter. If no tentative ruling is posted, please do not call the courtroom to inquire if or when one will be posted.

Once a tentative ruling has been posted, the court will not entertain requests for continuance and no additional papers will be considered.

SUBMITTING: The court will hear oral argument regarding law and motion matters on the hearing date and time stated above. If you wish to submit on the tentative ruling and do not intend to appear at the hearing, please inform opposing counsel and contact the court clerk at (657) 622-5615.

If all parties submit on the tentative ruling, then no hearing will be held and the tentative ruling shall become the final ruling. If all parties do not submit, the court will call the matter and hear oral argument on the hearing date.

APPEARANCES: Parties and counsel may appear at the law and motion hearing via Zoom or in-person. Persons appearing in-person shall come to Department N15 at the North Justice Center, 1275 N. Berkeley Avenue, Fullerton, CA 92832.

Persons appearing remotely must check-in online through the court’s website at https://www.occourts.org/media-relations/civil.html. Participants should click on the gold button entitled “Click Here to Appear/Check-In for Civil Limited/Unlimited/Complex Remote Hearings” and then click on the button entitled “Department N15 Judge Nathan Vu”.

Members of the public may attend the Law and Motion calendar in-person or they may attend remotely by contacting the court clerk at (657) 622-5615.

All persons appearing remotely must abide by all applicable laws and rules. This includes obtaining, testing the functionality of, and learning how to use the Zoom application and all necessary audio and video equipment prior to the remote hearing. More information is available at https://www.occourts.org/media-relations/civil.html.

COURT REPORTERS: Court reporters employed by the court are NOT normally provided for law and motion matters in civil courtrooms. If a party desires a record of a law and motion proceeding, it is the party’s responsibility to arrange for a privately-retained court reporter, who may appear in-person or remotely. Parties must comply with the Court’s policy on the use of privately-retained court reporters, available at https://www.occourts.org/media/pdf/Privately_Retained_Court_Reporter_Policy.pdf.

Worley vs. Daniel Hsu D.D.S., M.D.

30-2022-01276769

Demurrer to Complaint.

Defendants Daniel Hsu, D.D.S., M.D., Inc. dba Irvine Oral Surgery’s and Daniel Hsu’s Demurrer to Complaint is SUSTAINED as to the 1st, 2nd, 3rd, and 4th Causes of Action, with leave to amend within 21 days of service of the notice of ruling.

Defendants Daniel Hsu, D.D.S., M.D., Inc. dba Irvine Oral Surgery and Daniel Hsu (collectively, Hsu Defendants) demur to the Complaint filed by Plaintiff Eugene Worley.

Standard for Demurrer

”The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer . . . to the pleading on any one or more of the following grounds:

. . .

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

. . .”

(Code Civ. Proc., § 430.10.) A demurrer to a complaint or cross-complaint may be asserted against “the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

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 pleading, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . [and] consider[s] matters which may be judicially noticed.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591, citation omitted.)

Thus, in ruling on a demurrer to a complaint, a court must accept as true all allegations of fact contained in the complaint, (see Blank v. Kirwan (1985) 39 Cal.3d 311, 318), and 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, (see Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

Incomplete Complaint

Hsu Defendants argue that the Complaint is incomplete in that it is not signed and does not contain a prayer for relief.

A demurrer challenges the sufficiency of the allegations of the complaint and not whether the complaint abides by the procedural requirements of the Civil Procedure Code. Thus, a demurrer is not the appropriate vehicle to challenge an unsigned complaint.

Rather, a party may move to strike “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b); Code Civ. Proc., § 128.7 [“[e]very pleading . . . if the party is not represented by an attorney, shall be signed by the party”].) Hsu Defendants should have filed a motion to strike the unsigned Complaint.

In addition, the failure to include a prayer for relief also may be challenged by a motion to strike, since a prayer for relief is requirement of the Civil Procedure Code. (Code Civ. Proc., § 425.10, subd. (b) [complaint must include a “demand for judgment for the relief to which the pleader claims to be entitled”].)

However, the failure to include an allegation or prayer for relief may also be attacked by demurrer if it renders the complaint “uncertain”, “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

In this case, not only is there no prayer for relief, but the Complaint contains no specifics about the damages sustained by Plaintiff. Further, the information that is missing may not be clarified by discovery nor is it within the knowledge of the Defendants. Thus, it is not reasonably possible for Defendants to respond to the Complaint because they do not know the damages sustained by Plaintiff and what he is demanding. The demurrer must be sustained for uncertainty.

Duplicative Causes of Action

Hsu Defendants also assert that the 2nd, 3rd, and 4th Causes of Action of the Complaint are duplicative of the 1st Cause of Action.

The 1st Cause of Action alleges that Moving Defendants harmed Plaintiff through acts of medical negligence. (See Compl., ¶ 23.)

The 2nd Cause of Action is entitled “Breach of Duty to Refer to A Specialist” and pleads that Defendants failed to refer Plaintiff to a healthcare specialist capable of diagnosing TMD/TMJ disorder. (See Compl. at p. 1:13-14, ¶ 28.) (fn.1)

The 3rd Cause of Action asserts a claim for Negligence Res Ipsa Loquitur, and repeats the allegation that Defendants were negligent and that the Plaintiff’s injury ordinarily would not have occurred unless there was negligence. (See Compl., ¶¶ 34-35.)

The 4th Cause of Action is entitled “Failure to Obtain Informed Consent” and also “Medical Battery”, (see Compl., at pp. 1:15-16, 6:17), but only alleges that Defendants failed to take medically reasonable steps to rule out TMJ before performing surgery on [Plaintiff],” (see Compl. ¶¶ 40-41).

A demurrer may be sustained to a cause of action on the ground it is duplicative if it “adds nothing to the complaint by way of fact or theory of recovery.” (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135; see also Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [“The fifth alleged cause of action contains, by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery. There is no authority for a pleading of this type and the demurrer was properly sustained without leave to amend as to that cause.”].)

The 1st Cause of Action sounds in negligence and one of the acts of negligence alleges that Defendants should have referred Plaintiff to “see a Board Certified Oral and Maxillofacial Surgeon for a consult on August 13, 2021.” (Compl., ¶15.) Thus, the 2nd Cause of Action’s pleading that Defendants failed refer Plaintiff to see a specialist capable of diagnosing TMD/TMJ” is duplicative of and adds nothing to the 1st Cause of Action.

In addition, the 2nd Cause of Action, as alleged against the Hsu Defendants is inconsistent with Plaintiffs’ allegation that “Dr. Hsu . . ., as a Board-Certified Oral & Maxillofacial Surgeon, should have easily made a correct diagnosis of TMJ.” (Compl., ¶ 20.) Hsu Defendants cannot be faulted for failing to refer Plaintiff to a specialist if Hsu Defendants included such a specialist.

Res Ipsa Loquitur is not a separate cause of action but rather, a theory upon negligence can be predicated. (See Scott v, Rayhrer (2010) 185 Cal.App.4th 1535, 1540; see also Evid. Code, § 646, subd. (b) [“The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.”].) Thus, the 3rd Cause of action also adds nothing to the Complaint and the demurrer should be sustained as to it.

The 4th Cause of Action contains no allegations that Defendants failed to obtain informed consent or committed acts of medical battery. The only separate allegation of the 4th Cause of Action is that “Defendants failed to take medically reasonable steps to rule out TMJ before performing surgery on [Plaintiff].” (See Compl. ¶¶ 40-41). This is another allegation of negligence that adds nothing to the 1st Cause of Action.

Non-Opposition

Plaintiff has not filed an opposition to the demurrer. The failure to address or oppose an issue in a motion constitutes a waiver on that issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].) The court must grant the demurrer for that reason as well as those stated above.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

“[F]or an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” (Eghtesad v. State Farm General Insurance. Co. (2020) 51 Cal.App.5th 406, 411, quoting King v. Mortimer (1948) 83 Cal.App.2d 153, 158; see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 [“Only rarely should a demurrer to an initial complaint be sustained without leave to amend.”].)

The Complaint is an original complaint and the court therefore will grant leave to amend.

However, when leave to amend is granted on demurrer, amendments are limited to the issues addressed in the court’s ruling and generally may not include a new cause of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

The amending party may add a new cause of action only by obtaining court approval through a noticed motion or stipulation of the parties, or where the new cause of action merely changes the legal theory and not the underlying obligation. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, 111 [”The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”]; Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 984 fn.19.)

In addition to amending the complaint to cure the above-noted deficiencies, Plaintiff should ensure that any amended complaint is signed.

(fn.1) The 2nd Cause of Action also is denominated as a claim for “UNPAID WAGES\WRITTEN CONTRACT,” (see Compl. at p. 5:15), although this appears to be a typographical error.

Hsu Defendants shall give notice of this ruling.

Sclimenti vs USI Insurance Services, LLC

30-2023-01305262

Plaintiff Steve Sclimenti’s Demurrer to Defendant’s Amended Answer to Plaintiff’s Complaint is OVERRULED.

Plaintiff Steve Sclimenti demurs to the 7th Affirmative Defense of Defendants USA Insurance Services LLC’s and USI Advantage Corp.’s Answer to Plaintiff Steve Sclimenti’s Complaint.

Standard for Demurrer

“A party against whom an answer has been filed may object, by demurrer . . . to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.”

(Code Civ. Proc., § 430.20.) A demurrer may be asserted against “the whole answer, or to any one or more of the several defenses set up in the answer.” (Code Civ. Proc., § 430.50, subd. (b).)

7th Affirmative Defense (Unclean Hands)

Plaintiff demurs to the 7th Affirmative Defense based on Unclean Hands. Plaintiff argues that, as a matter of law, the Unclean Hands Defense is an inapplicable to statutory violations. Thus, the 7th Affirmative Defense fails as a matter of law with respect to the Plaintiff’s 1st Cause of Action for Declaratory Relief pursuant to Civil Procedure Code section 1060, et. seq., and Business and Professions Code section 16600, et seq., (declaratory relief regarding contract in restraint of profession, trade, or business) and Business and Professions Code section 17200, et. seq. (unfair competition law).

With respect to the 1st Cause of Action, Plaintiff cites to Brown v. TGS Management Company, LLC (2020) 57 Cal.App.5th 303. In that case, the Court of Appeal determined that an unclean hands defense could not be used to defeat a claim under Section 16600 that a contract was “void or against public policy”. (Id. at pp. 319-320.) This ruling forecloses the possibility that the unclean hands defense may be asserted against the 1st Cause of Action for Declaratory Relief under Section 16600.

With respect to the 2nd Cause of Action, “Courts have long held that the equitable defense of unclean hands is not a defense to an unfair trade or business practices claim based on violation of a statute.” (Ticconi v. Blue Shield of California Life & Health Ins. Co. (2008) 160 Cal.App.4th 528, 543.) “To allow such a defense would be to judicially sanction the defendant for engaging in an act declared by statute to be void or against public policy.” (Ibid.; see also Ghory v. Al–Lahham (1989) 209 Cal.App.3d 1487, 1492 “[p]rinciples of equity cannot be used to avoid a statutory mandate.”].)

However, as the Court of Appeal went on to explain in Ticconi v. Blue Shield of California Life & Health Ins. Co., “[the] Supreme Court held that the equities may be considered when the trial court exercises its discretion to fashion a remedy under Business and Professions Code section 17203.” (Ticconi v. Blue Shield of California Life & Health Ins. Co., supra, 160 Cal.App.4th at p. 544, italics original.)

While, “equitable defenses may not be asserted to wholly defeat a UCL claim since such claims arise out of unlawful conduct[,] [i]t does not follow, however, that equitable considerations may not guide the court's discretion in fashioning the equitable remedies authorized by section 17203.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179.) As the Supreme Court explained, “[a] court cannot properly exercise an equitable power without consideration of the equities on both sides of a dispute.” (Id. at p. 180.)

“Therefore, in addition to those defenses which might be asserted to a charge of violation of the statute that underlies a UCL action, a UCL defendant may assert equitable considerations. In deciding whether to grant the remedy or remedies sought by a UCL plaintiff, the court must permit the defendant to offer such considerations.” (Id. at pp. 180–181.)

Therefore, while Defendants’ unclean hands affirmative defense may not be used to wholly defeat the 2nd Cause of Action, Defendants may still allege the affirmative defense as an equitable consideration in fashioning a remedy for a violation of Section 17200 et seq. Just as other affirmative defenses such as comparative fault, indemnity, and failure to mitigate may not wholly eliminate liability but may reduce it, the equitable defense of unclean hands may be considered in reducing any remedy ordered for Plaintiff’s Unfair Competition Law claim.

“A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Thus, a court must overrule a demurrer to a cause of action if it is based on at least one viable theory of liability.” (Thompson v. Spitzer (2023) 90 Cal.App.5th 436, 452.) The same rule should apply to demurrers to a defense. Because Plaintiff’s argument does not dispose of the unclean hands argument in its entirety and because there is at least one viable theory upon which that defense may be asserted, the court must overrule the demurrer to the 7th Affirmative Defense.

Defendants shall give notice of this ruling.

Hughes vs. Hughes

30-2022-01239731

Motion for Discovery of Peace Officer Personnel Records

Plaintiff Albert Hughes III’s Amended Motion for Discovery of Peace Officer Personnel Records is CONTINUED to September 25, 2023 at 8:30 a.m. in Department N15.

Los Angeles County Sheriff’s Department is ORDERED to properly serve the Opposition to Plaintiff’s Motion for Peace Officer Records and Filles (Pitchess) and Memorandum of Points and Authorities upon Plaintiff Albert Hughes III no later than August 30, 2023.

Plaintiff Albert Hughes III moves for an order directing the Los Angeles County Sheriff’s Department to make available to Plaintiff for examination, inspection, and copying “all documents concerning bailiff Albert Hughes Jr. (‘Defendant’) as defined by Penal Code section 832.8; records maintained pursuant to Penal Code section 832.5, subdivision (b); and any other records, documents, or items pertaining to the defendant Albert Hughes Jr.” (Amend. Mot. for Discovery of Peace Officer Personnel Records at p. 2:12-16.)

Although Plaintiff lists 7 categories of personnel records, Plaintiff states that he seeks “all records concerning bailiff Albert Hughes Jr. (‘Defendant’) . . . including but not limited to” the 7 categories. (Id. at p. 2:16-17.)

Standard for Discovery of Peace Officer Personnel Records (Pitchess Motion)

Pursuant to Penal Code section 832.7, peace officer “personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” (Penal Code, § 832.7, subd. (a); see Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 399-400 [these provisions “take precedence over the general discovery rules outlined in the Code of Civil Procedure”]; County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1610 [“any . . . civil proceeding” includes personal injury actions].)

Penal Code section 832.8 defines “personnel records” as:

[A]ny file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations or complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

(Penal Code, § 832.8; see Ibarra v. Superior Court (2013) 217 Cal.App.4th 695, 702 [“[P]ersonnel records include only the types of information enumerated in section 832.8.”].)

When discovery or disclosure is sought of such peace officer personnel records, “the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records.” (Evid. Code, § 1043, subd. (a).) This motion is commonly referred to as a Pitchess motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

The Pitchess motion must include the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(Evid. Code, § 1043, subd. (b).) The party requesting the discovery or disclosure also must give written notice of the motion to the governmental agency that has custody and control of the records and the agency must immediately notify the individual whose records are being sought. (Evid. Code, § 1043, subds. (a), (c).)

The motion involves a two-step process. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020.)

First, the moving party must meet the requirements of Evidence Code section 1043, and in particular include “[a]ffidavits showing good cause for the discovery . . ., setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; see Evid. Code, § 1043, subd. (b)(3).)

To show the requested information is material, the affidavits should set forth “a ‘specific factual scenario’ which provide[s] sufficient information to allow the trial court to assess whether the records [are] material ‘to the subject matter involved in the pending litigation’.” (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146, quoting Evid. Code., § 1043., subd. (b)(3).) In other words, the moving party must articulate with some specificity how the personnel records being sought will support a claim or defense, or how it will impeach the officer’s version of events. (See Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.)

“This good cause showing is a ‘relatively low threshold for discovery.’ Assertions in the affidavits ‘may be on information and belief and need not be based on personal knowledge, but the information sought must be requested with sufficient specificity to preclude the possibility of a [party] simply casting about for any helpful information.’” (Garcia v. Superior Court, supra, 42 Cal.4th at p. 70, quoting City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83, and People v. Mooc (2001) 26 Cal.4th 1216, 1226.)

Second, if the trial court concludes that the party has met its initial burden of showing good cause, the court shall examine the information in chambers, pursuant to Evidence Code section 1045, to determine if there is information relevant to the subject matter in the pending litigation. (Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086.)

Section 1045(b)(1) requires the court to exclude discovery in a criminal case of “the conclusions of any officer investigating a [citizen’s] complaint filed pursuant to Section 832.5 of the Penal Code.” (Evid. Code, § 1045, subd. (b)(1); see City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 56 [“[T]he statutory scheme reveals a legislative intent to allow disclosure of the outcome of an investigation, i.e., the discipline imposed, without also requiring disclosure of how or why the investigating body reached that outcome.”].)

While Section 1045(b)(1) does not apply in a civil case such as this one, Section 1045(b)(2) still requires the court to consider whether the records “are so remote as to make disclosure of little or no practical benefit.” (See Evid. Code., § 1045, subd. (b)(2).) Thus, the court must determine, on a case-by-case basis, whether the “thought processes of, and factual inferences and deductions drawn by, an officer investigating a complaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence” should be produced. (See Haggerty v. Superior Court, supra, 117 Cal.App.4th at pp.1088-1089, quoting City of San Jose v. Superior Court, supra, 5 Cal.4th at p. 55.)

In Haggerty v. Superior Court, the Court of Appeal ruled, in a civil case, that the conclusions of an officer investigating a complaint against another peace officer should be excluded from production pursuant to Evidence Code section 1045(b)(2). (Haggerty v. Superior Court, supra, 117 Cal.App.4th at pp. 1088-1089.) However, the Court of Appeal also held that the remainder of the report investigating the complaint could be produced and that it was not sufficient merely to produce only “the names, addresses and telephone numbers of the prior complainants/witnesses.” (Id. at pp. 1089-1091.)

If the issue in the litigation “concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.” (Evid. Code, § 1045, subd. (c).) In addition, the court “ay make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.” (Evid. Code, § 1045, subd. (d).)

“If those statutory provisions do not prohibit disclosure, ‘the trial court should then disclose to the defendant such information [that] is relevant to the subject matter involved in the pending litigation.” (Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 640, quoting People v. Mooc, supra, 26 Cal.4th at p. 1226, and Evid. Code., § 1045, subd. (a).) The trial court has broad discretion in ruling on Pitchess motions and the standard of review is abuse of discretion. (Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086.)

As the Supreme Court has explained:

The statutory scheme thus carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043 . . . insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in [Evidence Code] section 1045 guarantee, in turn, a balancing of the officer’s privacy interests against the defendant’s need for disclosure . . . .

(City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.)

Notice and Opposition

The court previously continued the hearing on this motion because Plaintiff did not serve this motion upon the Los Angeles County Sheriff’s Department at the address designated for service of Pitchess motions and upon Defendant Albert Hughes, Jr., at his last known address. On June 26, 2023, Plaintiff filed and served an Amended Notice and Motion for Discovery of Peace Officer Personnel Records. (ROA #84.)

The Los Angeles County Sheriff’s Department (LASD) has filed an opposition to this motion that Plaintiff has not shown good cause for his request for Defendant Albert Hughes, Jr.’s personnel records.

LASD argues that “the motion fails to discuss how Deputy ALBERT HUGHES JR's personnel records are related to Plaintiffs lawsuit, for example, how complaints pertaining to sexual harassment are directly related to Plaintiffs assertions.” (Opp’n to Pltf.’s Mot. for Peace Officer Records and Files (Pitchess) at p. 6:4-6.)

LASD also asserts that Plaintiff’s request is overbroad because it seeks records without limit to time period.

In light of the fact that Plaintiff is requesting all personnel records of Defendant Albert Hughes, Jr., without respect to the subject matter or time period of the records, there is a serious concern about whether Plaintiff has shown good cause and whether Plaintiff’s request is overbroad.

Plaintiff makes some general arguments that there is good cause for disclosure because all prior misconduct is relevant circumstantial evidence to the current case and that records regarding Defendant Albert Hughes Jr.’s character, habits, customs, and credibility will tend to prove how he acted on the day that decedent passed away. Plaintiff also claims that some of this information may be impeachment evidence.

However, Plaintiff seeks much more than records regarding Defendant Albert Hughes, Jr.’s misconduct, character, habit, customs and credibility, and does not explain why he needs all personnel records from all time periods. And even assuming Plaintiff limited his request to records of misconduct, character, habit, customs, and credibility, Plaintiff does not connect all such records to the issues in this case. For example, Plaintiff does not explain how records of sexual harassment, which he seeks, relate to any of the allegations of the Complaint.

In addition, default was previously entered against the only named defendant in this case -- Defendant Albert Hughes, Jr. (See ROA #31.) Plaintiff subsequently filed a First Amended Complaint, that pleading was served on Defendant Albert Hughes, Jr. more than 5 months ago and he has not filed a response to the First Amended Complaint either. (See ROA #76.) In fact, Defendant Albert Hughes, Jr. has never made an appearance in this case, despite being served with numerous court filings.

Thus, Defendant Albert Hughes, Jr. defaulted and continues to default in this case. A defendant who is in default “is said to ‘confess’ the material facts alleged by the plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint.’” (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823, quoting 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 153, p. 570.)

Where all the allegations of the complaint are assumed to be true and the complaint is well pleaded, then the defendant is liable and the Plaintiff is entitled to a default judgment. Thus, it may be that there is no need for Plaintiff to prove Defendant Albert Hughes, Jr.’s liability and no need for the records in question.

However, LASD did not file its opposition until August 23, 2023, only 3 court days before the hearing. LASD’s opposition was thus untimely and gave Plaintiff insufficient time to respond. (See Evid. Code § 1043, subd. (a)(1); Code Civ. Proc., § 1005, subd. (b) [oppositions must be filed at least 9 court days before the hearing].)

In addition, LASD improperly served its opposition upon Plaintiff by electronic mail. Although Plaintiff is an attorney, he is a party representing himself in this action. Thus, Civil Procedure Code section 1010.6(b) does not apply here. In addition, there is no indication that Plaintiff affirmatively consented to electronic service. (See Code Civ. Proc., § 1010.6, subd. (c); Cal. Rule of Court, rule 2.251(c)(3)(B), rule 2.253(b)(G)(2)-(3).)

The court therefore will order LASD to serve Plaintiff the opposition proper means and continue the hearing to allow Plaintiff time to file and serve a reply.

Plaintiff shall give notice of this ruling.

Raile vs. Williams

30-2023-01304903

Demurrer

Pursuant to the Request for Dismissal of the Complaint as to Defendant J. Craig Williams filed August 3, 2023, (see ROA #72), and Notice of Entry of Dismissal and Proof of Service filed August 9, 2023, (see ROA #74), this matter is taken OFF CALENDAR.

ACE Foods, LLP vs. Redondo Investment Company

30-2020-01169974

Motion for Summary Judgment or Summary Adjudication

Defendants Redondo Investment Company’s and Christopher Vella’s Motion for Summary Judgment, Alternatively Summary Adjudication, as to Plaintiffs’ Third Amended Complaint is taken OFF CALENDAR.

Defendants Redondo Investment Company and Christopher Vella (collectively, Redondo Defendants) move for summary judgment, or in the alternative, for summary adjudication as to the 1st through 9th Causes of Action of the operative complaint filed by Plaintiffs Ace Foods LLP and Seth Lindauer.

On August 14, 2023, Plaintiffs filed a Request for Dismissal without prejudice as to the complaint with respect to Defendants Redondo Investment Company and Christopher Vella. (See ROA #827.) The dismissal was entered the same date. (See ibid.)

Thus, Redondo Defendants’ motion for summary judgment or summary adjudication is moot and should be taken off calendar.

The court clerk shall give notice of this ruling.

Motion for Summary Judgment or Summary Adjudication

Cross-Complainant Redondo Investment Company’s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication, as to Each Cause of Action in Cross-Complainant’s First Amended Cross-Complaint is taken OFF CALENDAR.

Cross-Complainant Redondo Investment Company (Cross-Complainant Redondo) moves for summary judgment, or in the alternative, for summary adjudication as to the 1st through 3rd Causes of Action of the First Amended Cross-Complaint against Plaintiffs Ace Foods LLP and Seth Lindauer.

On August 9, 2023, Cross-Complainant Redondo filed a Request for Dismissal with prejudice of the cross-complaint filed by Cross-Complainant Redondo. (See ROA #823.) The dismissal was entered the same date. (See ibid.)

Thus, Cross-Complainant Redondo’s motion for summary judgment or summary adjudication is moot and should be taken off calendar.

The court clerk shall give notice of this ruling.

Vorrath vs. Guntle

30-2022-01284979

Motion to Be Relieved as Counsel

John F. Ramey’s and RAMEY LAW, P.C.’s Motion to Be Relieved as Counsel is CONTINUED to September 25, 2023 at 8:30 a.m. in Department N15.

John F. Ramey and RAMEY LAW, P.C. are ORDERED to file with the court, within 7 days of this ruling:

1) a proof of service indicating all addresses at which Plaintiff was served with the papers for John F. Ramey’s and RAMEY LAW, P.C.’s Motion to Be Relieved as Counsel,

2) a declaration stating all facts showing that the service address for Plaintiff Sylvia Vorrath is her last known residence or business address and that John F. Ramey and RAMEY LAW, P.C. have been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to filing the Motion to Be Relieved as Counsel, and

3) a proof of service indicating that the above declaration and this ruling have been served upon the Plaintiff at her last known residence or business address.

Plaintiff Sylvia Vorrath shall file and serve any opposition to the Motion to Be Relieved as Counsel no later than September 18, 2023, and may appear at the continued hearing to oppose the motion.

John F. Ramey and RAMEY LAW, P.C. move to relieved as counsel for Plaintiff Sylvia Vorrath.

Standard to Be Relieved as Counsel

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination . . . [u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

The notice of motion and motion to be relieved as counsel under Civil Procedure Code section 284 shall be directed to the client and shall be made on the Judicial Council’s Notice of Motion and Motion to Be Relieved as Counsel-Civil form (Form MC-051).  (Cal. Rules of Ct., rule 3.1362(a).)  No memorandum is required for the motion,  (see Cal. Rules of Ct., rule 3.1362(b)), but the motion shall be accompanied by a declaration stating in general terms, without compromising the confidentiality of the attorney-client relationship, why counsel is making a motion instead of filing a consent, (Cal. Rules of Ct., rule 3.1362(c)).

If the motion is served by mail, it shall be accompanied by a declaration stating facts showing either that (1) the service address is the current residence or business address of the client or (2) the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to filing the motion.  (Cal. Rules of Ct., rule 3.1362(d).) 

The motion may be brought on various grounds, some of which include the client’s failure to pay attorney fees, (People v. Prince (1968) 268 Cal.App.2d 398, 406); the client’s insistence on an action that is not justified under existing law or by good faith argument, (Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1015); and a conflict of interest between counsel and the client, (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592).

However, under the Rules of Professional Conduct, “a member shall not terminate a representation until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel, and complying with paragraph (e).” (Rules Prof. Conduct, rule 1.16(d); see Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

Thus, the court has discretion to deny a motion to be relieved as counsel where discharging counsel would result in “undue prejudice to the client’s interests, ” (Ramirez vs. Sturdevant (1994) 21 Cal.App.4th 904, 915), or “an unreasonable disruption of the orderly processes of justice,” (People v. Ortiz (1990) 51 Cal.3d 975, 979). The court may also deny an attorney’s request to withdraw “where such withdrawal would work an injustice or cause undue delay in the proceeding”. (Mandell v. Superior Court  (1977) 67 Cal.App.3d 1, 4.)  However, such discretion is to be exercised reasonably. (Ibid.)

In this case, John F. Ramey averred in his declaration that he had “served the client by mail at the client's last known address with copies of the motion papers” and “confirmed within the past 30 days that the address is current”. John F. Ramey also declares that he “[h]as also sent a copy via email to client’s last know email address, as well as sent a text communication and attempt to reach client by telephone.”

Counsel have declared that there has been a breakdown of the attorney-client relationship, that the client has failed to comply with counsel’s instructions, and that there has been a breach of the retainer agreement. These are sufficient reasons to be relieved as counsel.

In addition, the matter has not been set for a jury trial and the next hearing – a case management conference – is not scheduled until October 19, 2023. Plaintiff will have sufficient time to obtain new counsel and will not be unduly prejudiced in her ability to prepare for and try the case.

However, the proof of service for the motion papers only states that service was completed on opposing counsel on April 25, 2023. John F. Ramey and RAMEY LAW, P.C. do not identify at what addresses Plaintiff was served (whether mailing address, electronic address, or text phone number), when Plaintiff was served.

Counsel also fail to identify any facts showing that the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to filing the motion. 

In order to ensure that Plaintiff has received notice of this motion and an opportunity to respond, the court shall require that John F. Ramey and RAMEY LAW, P.C. file and serve 1) a proof of service indicating all addresses at which Plaintiff was served with the motion papers, 2) a declaration stating all facts showing that the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to filing the motion, and 3) a proof of service indicating that the above declaration and this ruling have been served upon the Plaintiff at her last known residence or business address.

If counsel fail to complete all of these requirements within 7 days of this ruling, the court may deny this Motion to Be Relieved as Counsel.

John F. Ramey and RAMEY LAW, P.C. shall give notice of this ruling.

Freeman vs. Macchiaverna

30-2021-01235064

Application for and Motion to Contest Determination of Good Faith Settlement

Defendant American Vision Windows, Inc. dba American Vision’s Application for Determination of Good Faith Settlement is GRANTED.

Defendant/Cross-Complainant Louis Anthony Macchiaverna’s Motion to Contest Defendant and Cross-Defendant American Vision Windows’ Application for Determination of Good Faith Settlement is DENIED.

Defendant/Cross-Complainant/Cross-Defendant Tollhouse Window Company fka Anlin Industries’ Motion Contesting Application for Determination of Good Faith Settlement is taken OFF CALENDAR.

Defendant American Vision Windows, Inc. dba American Vision (Defendant American Vision) applies to this court for a determination of good faith settlement.

Defendant/Cross-Complainant Louis Anthony Macchiaverna (Defendant Macchiaverna) moves to contest Defendant American Vision’s Application for Determination of Good Faith Settlement (Application).

Defendant/Cross-Complainant/Cross-Defendant Tollhouse Window Company fka Anlin Industries (Defendant Tollhouse) also moved to contest Defendant American Vision’s Application.

However, on August 17, 2023, Defendant Tollhouse filed a Notice of Withdrawal of Motion Contesting American Vision Windows Application for Determination of Good Faith Settlement. (See ROA #245.) The court will take Defendant Tollhouse’s motion off calendar pursuant to the notice of withdrawal.

The court must still address Defendant Macchiaverna’s motion.

Standard for Determination of Good-Faith Settlement

Code of Civil Procedure section 877.6 provides in pertinent part:

(a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. . . .

(b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

(d) The party asserting the lack of good faith shall have the burden of proof on that issue.

(Code Civ. Proc., § 877.6.)

As explained by the Supreme Court in the seminal case on this subject:

[T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. [A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.

(Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, internal citations omitted.)

Another key factor is the settling tortfeasor’s potential liability for indemnity to joint tortfeasors. (Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 816, fn. 16; TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) Because a good faith determination bars indemnity claims by nonsettling parties, the true value of the settlement may not be the amount paid to plaintiff but rather the value of the shield against such indemnity claims. (TSI Seismic Tenant Space, Inc. v. Superior Court, supra, 149 Cal.App.4th at p. 166.)

“Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. [A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d at p. 499 [internal citations omitted].) “‘Good faith’ is not affected by the fact the parties did not have access to all the evidence ultimately offered at trial on the disputed issues.” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 878.)

When the good faith nature of a settlement is disputed, as it is here, the court must consider and weigh the Tech-Bilt factors, irrespective of the fact that the opposing party has the burden of proof on the issue of lack of good faith. (See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 [“when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors”]; see also id. at pp. 1263-1264.)

While the opposing party does bear the burden of proof on the issue of lack of good faith (Code Civ. Proc., § 877.6, subd. (d)), the statutory requirement of “good faith” presents an issue of fact and a finding of good faith must therefore be supported by substantial evidence. (Id. at pp. 1263-1265.) If, in a contested case, “‘there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant’s liability, then a determination of good faith based upon such assumption is an abuse of discretion.’” (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350-1351 & fn. 6, quoting Toyota Motor Sales U.S.A., Inc. v. Superior Court, supra, 220 Cal.App.3d at p. 871.)

In other words, just because the contesting party has the burden of proof on the issue of lack of good faith and might fail to meet that burden, does not mean that the trial court may properly grant the application if the record lacks sufficient evidence to support the conclusion that the settlement was entered into in good faith. (City of Grand Terrace v. Superior Court, supra, 192 Cal.App.3d at pp. 1263-1264.)

Application to This Case

Defendant American Vision settled Plaintiffs’ claims for $1 million, which will be paid by Gemini Insurance Company on behalf of Defendant American Windows. (Declaration of Sean R. Ferron (Ferron Decl.), ¶ 11.)

Defendant American Vision provided evidence that this settlement was reasonable because its only involvement in this case was that it installed the windows that allegedly failed and caused Plaintiffs’ damages. (See Decl. of Sean R. Ferron, ¶ 2.)

Defendant American Vision also provided evidence that an inspection of the subject property revealed that the window in question was installed with code compliant restrictors but that they had been pushed in so that the window could open more than 4 inches, which allowed Plaintiff Blake Freeman to fall out. (See id., ¶ 4.) Thus, Defendant American Vision would have contended at trial that it had installed the window with the required restrictors and that the restrictors had been activated when the window was installed. (See ibid.)

Further, the $1 million settlement represents the entire policy limits of Defendant American Vision’s liability insurance policy applicable to this specific incident and it did not have any other applicable insurance, including any excess insurance, that could contribute to this settlement. (See id., ¶ 13).

While this factor alone is not dispositive, a settlement based on a defendant’s insurance policy limits “is very strong evidence of a ‘good faith’ settlement, absent evidence of collusion or grossly inappropriate allocation or apportionment of the settlement proceeds to injure the nonsettling alleged tortfeasors. It would be extremely difficult to envision a set of circumstances in which an insurance company would pay out its entire substantial policy limit . . . simply to injure another codefendant. Experience teaches us that insurance companies usually and ordinarily pay their policy limits only to have their insureds and themselves discharged from all liability in any given case.” (Fisher v. Superior Court (1980) 103 Cal.App.3d 434, 445.) Here, there is no evidence of collusion or improper conduct in coming to this settlement.

In addition, Plaintiffs have alleged that several defendants are liable for their damages, including Defendant Tollhouse Window Company fka Anlin Industries, Defendants The Adame Group dab RE/MAX New Dimension and Javier Robles, and Defendant Louis Anthony Macchiaverna. These other Defendants may be wholly or partially liable for Plaintiffs’ damages, potentially reducing or reducing Defendant American Vision’s eventual liability.

In particular, Defendant Tollhouse Window Company fka Anlin Industries and Defendants The Adame Group dab RE/MAX New Dimension and Javier Robles have settled with Plaintiffs for $11.95 million. In addition, as Plaintiffs themselves argue, Defendant Macchiaverna may shoulder the bulk of the liability as it is alleged that he did extensive renovations of the subject property in a negligent manner, that he advised Defendant American Vision he did not want to obtain permits for the renovations including the window installation, that he has decades of experience as a real estate professional, that he destroyed documents even after he was aware of the potential of the lawsuit, and that Plaintiffs have claims against Defendant Macchiaverna not only for negligence and breach of contract but also misrepresentation and concealment. (See, e.g., Compl., ¶¶ 14, 22-24, 29-32, 37-38.)

The court considers the factors laid out by the Supreme Court, which include: (1) a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 99.)

The court finds that the settlement here is “within the reasonable range” of the settling tortfeasor’s share of liability, (ibid.), and not “grossly disproportionate to what a reasonable person, at the time of the settlement would estimate the settling defendant’s liability to be,” (Barth-Wittmore Ins. V. H.R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3d 124, 132). In exercising its discretion to determine whether a settlement was reached in good faith, “[a]n educated guess is the best a judge can do . . . [as] [e]ven the wisest judge rarely has powers to ‘prophesy with a wink of his eye, peep with security into futurity . . . .’” (North County Contractor’s Ass’n v. Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1095, quoting Gilbert & Sullivan, The Sorcerer, Act 1.)

Defendant Macchiaverna argues it would be inequitable to allow Defendant American Vision to settle for $1 million, when it was Defendant American Vision’s defective installation that caused the accident and is the sole reason that Defendant Macchiaverna was sued in this case. Defendant Macchiaverna claims that a determination of good-faith settlement would leave him with a disproportionate share of the liability.

However, as noted above, Plaintiffs’ theory of liability against Defendant Macchiaverna is premised on Defendant Macchiaverna’s own actions – actions that go well beyond any conduct of Defendant American Vision and that open up Defendant Macchiaverna to liability potentially greater than that faced by Defendant American Vision.

Defendant also argues that the $1 million settlement is disproportionate to the Plaintiffs’ Statement of Damages, which indicates Plaintiffs seek $400 million in damages. (See Decl. of Ian J. Pittluck, Exh. 1.) However, a Statement of Damages merely establishes the maximum amount of a default judgment against a particular defendant. (See Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 399.)

As Defendant Macchiaverna later admits, Plaintiffs actually are seeking approximately $20 million in damages. The court cannot say that a settlement of $1 million by Defendant American Vision under the circumstances known at this time is grossly disproportionate to what a reasonable person would estimate the settling defendant’s liability to be.

Defendant Macchiaverna next argues that the determination of good-faith does not consider his breach of contract claims against Defendant American Vision. However, as Defendant Macchiaverna himself admits, Civil Procedure Code section 877.6 only bars a “joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).)

Thus, to the extent that Defendant Macchiaverna has true breach of contract claims against Defendant American Vision, such claims would not be barred by a determination of good-faith settlement. To the extent that Defendant Macchiaverna’s cross-claims are only disguised contribution, indemnity, or comparative negligence or comparative fault causes of action, they were considered in the above analysis and once the court makes a determination of good faith settlement, such claims are properly barred.

Defendant American Vision argues that all of Defendant Macchiaverna’s cross-claims are barred because there was no right to express indemnity under the contract between the parties and the cross-claims are only disguised claims for non-contractual contribution, indemnity, or comparative negligence or comparative fault.

However, this is not before the court at this time and the court need not take up this issue. It is sufficient for now that the court finds that the settlement between Plaintiffs and Defendant American Vision is a good faith settlement pursuant to Code of Civil Procedure section 877.6.

Defendant American Vision shall give notice of this ruling.

Lockett vs. Molinar

30-2021-01225093

Motion for Terminating Sanctions

Pursuant to the court’s order issued July 7, 2023, this matter has been CONTINUED to October 23, 2023, at 8:30 a.m. in Department N15.

Motion for Leave to Intervene

Infinity Insurance Company’s Motion for Leave to Intervene is GRANTED.

Infinity Insurance Company is ORDERED to file and serve Intervenor Infinity Insurance Company’s Complaint-in-Intervention, which is attached as Exhibit A to the Declaration of Jeannette D. Lawrence, within 7 days of this ruling.

Infinity Insurance Company moves for leave to intervene on behalf of Defendant Anthony Drew Molinar (Defendant Molinar).

Standard for Intervention

A non-party, who is referred to as an “intervenor,” may become a party to an action or proceeding between other persons by:

(1) Joining a plaintiff in claiming what is sought by the complaint;

(2) Uniting with a defendant in resisting the claims of a plaintiff; or

(3) Demanding anything adverse to both a plaintiff and a defendant.

(Code. Civ. Proc., § 387, subd. (b).)

The non-party must request leave to intervene from the court “by noticed motion or ex parte application,” which “shall include a copy of the proposed complaint in intervention or answer in intervention and set for the grounds upon which intervention rests.” Code. Civ. Proc., § 387, subd. (c).)

The court must grant leave to intervene if either of the following requirements are met:

(A) A provision of law confers an unconditional right to intervene; or

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.

(Code. Civ. Proc., § 387, subd. (d)(1).) This is referred to as mandatory intervention.

The court may grant leave to intervene, at its discretion, “if the [non-party] has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code. Civ. Proc., § 387, subd. (d)(2).) This is referred to as permissive intervention.

In general, the party seeking to intervene must have a direct and immediate interest in the outcome of the litigation (i.e., he or she must stand to gain or lose by direct operation of the judgment). (See Fireman’s Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303-305.)

“A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation.” (Continental Vinyl Prods. Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 549.)

Examples of direct interests include a class member’s interest in class recovery, (see Mann v. Super. Ct. (1942) 53 Cal.App.2d 272, 280); an assignee’s interest in a plaintiff’s claim, (see Marc Bellaire v. Fleischman (1960) 185 Cal.App.2d 591, 597); or the interest of parties that might be subject to secondary or derivative liability following a judgment against the defendant, (see Robinson v. Crescent City Mill & Trans. Co. (1892) 93 Cal. 316, 319.

In general, Section 387 should be construed liberally in favor of intervention. (See Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1201.) In considering whether to exercise the court’s discretion to permit intervention, the court considers whether intervention will enlarge the issues raised by the original parties, and whether the reasons for intervention outweigh any opposition by the existing parties. (Truck Ins. Exch. v. Superior Court (1997) 60 Cal.App.4th 342, 346.)

Whether intervention should be allowed in a particular case “is best determined by a consideration of the facts of that case” and the decision is ordinarily left to the sound discretion of the trial court. (Fireman’s Fund Ins. Co. v. Gerlach, supra, 56 Cal.App.3d 299, 302.)

Intervention by Insurer

In this case, Infinity Insurance Company (Infinity) claims that it is Defendant Molinar’s liability insurer and that if Defendant Molinar is found liable to Plaintiff, Infinity may be responsible for paying a portion of the judgment. Infinity states that it is unable to stablish or maintain contact with Defendant Molinar and that Defendant Molnar may be unable to defend himself in this lawsuit.

Intervention by an insurer is permitted where the insurer remains liable for any default judgment against the insured, and it has no means other than intervention to litigate liability or damage issues. (See Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 385.)

“An insurer’s right to intervene in an action against the insured, for personal injury or property damage, arises as a result of Insurance Code section 11580,” which provides that “a judgment creditor may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits.” (Id. at p. 386.)

“Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in the third party action against the insured, intervention is appropriate. The insurer may either intervene in that action prior to judgment or move under Code of Civil Procedure section 473 to set aside the default judgment. Where an insurer has failed to intervene in the underlying action or to move to set aside the default judgment, the insurer is bound by the default judgment.” (Id. at pp. 386-387.)

Here, Plaintiff Elizabeth Lockett has moved for terminating sanctions and Defendants have not and may not respond to the motion. If the court grants the motion, Infinity may be liable for a portion of the resulting judgment. Thus, Infinity has an unconditional right to intervene pursuant to Insurance Code section 11580 and Reliance Ins. Co. v. Superior Court. In addition, intervention is appropriate because Infinity has direct interest in that it may be subject to secondary or derivative liability following a judgment against Defendant Molinar.

Plaintiff states that she is not opposing the Motion for Leave to Intervene as long as Infinity is only stepping into the shoes of Defendant Molinar. Infinity responds that it intends only to assert the defenses available to Defendant Molinar and will not enlarge any of the issues in this case or unduly delay the proceedings.

Plaintiff also asserts that Infinity should not be allowed to argue that the motion for terminating sanctions should not apply to Infinity or that Infinity’s intervention renders the motion for terminating sanctions moot.

The issue of the effect of Infinity’s intervention on the motion for terminating sanctions, if any, is not before the court. Any party, including Infinity, may file the appropriate papers regarding the motion for terminating sanctions and the court will decide the issue at the hearing on that motion.

It is sufficient for now that Infinity has the right to intervene and even if it did not, the court would exercise its discretion to allow permissive intervention.

Infinity shall give notice of this ruling.

Lopez vs. Commodity Transporters, Inc.

30-2022-01278972

Motions to Compel Discovery

Defendants Commodity Transporters, Inc.’s; CT Logistics, Inc.’s; Cal West Commodities, Inc.’s; and Michael Devon Toole’s Motions to Compel Responses to Defendants’ Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) are GRANTED.

The Court ORDERS Plaintiff Amelia Lopez serve full, complete, and verified responses to Defendants Commodity Transporters, Inc.’s; CT Logistics, Inc.’s; Cal West Commodities, Inc.’s; and Michael Devon Toole’s Form Interrogatories (Set One), Motion to Compel Responses to Special Interrogatories (Set One), and Motion to Compel Responses to Request for Production of Documents (Set One) without objections and within 30 days of service of the notice of ruling.

The court ORDERS that Plaintiff Amelia Lopez pay to Defendants Commodity Transporters, Inc.; CT Logistics, Inc.; Cal West Commodities, Inc.; and Michael Devon Toole sanctions in the total amount of $660.00 per motion (3.0 hours x $200 per hour in reasonable attorney’s fees and $60 for the motion filing fee) for a total of $1,980 within 30 days of service of the notice of ruling.

Defendants Commodity Transporters, Inc.; CT Logistics, Inc.; Cal West Commodities, Inc.; and Michael Devon Toole (collectively, Defendants) move to compel Plaintiff Amelia Lopez to provide responses to Defendants’ Form Interrogatories (Set One), Special Interrogatories (Set One); and Request for Production of Documents (Set One).

Compelling Responses to Interrogatories and Requests for Production

When a party properly propounds interrogatories and the party receiving the interrogatories fails to respond, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

Further, when the party receiving the discovery requests fails to respond, the propounding party is not required to file a meet and confer declaration prior to filing its motion to compel, and there is no time limit for the propounding party to file its motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)

In addition, when a party properly propounds requests for production and the party receiving the requests fails to respond, “[t]he party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)

Similarly, “[t]he party to whom the interrogatories are directed waives 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 . . . .” (Code Civ. Proc., § 2030.290, subd. (a).)

Similarly, “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product . . . .” (Code Civ. Proc., § 2031.300, subd. (a).)

Defendants have presented evidence that they served Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) on Plaintiff on January 5, 2023. (Form Interrogatory Declaration of Mary M. Campo (“Campo Form Rog Decl.”) ¶ 3, Exh. A; Special Interrogatory Declaration of Mary M. Campo (“Campo Special Rog Decl.”) ¶ 3, Exh. A; Request for Production Declaration of Mary M. Campo (“Campo RFP Decl.”) ¶ 3, Exh. A.)

Plaintiff has not served responses to any of the above discovery requests, even though Defendants’ attempted to meet and confer. (See Campo Form Rog Decl. ¶¶ 4, 6; Campo Special Rog Decl. ¶¶ 4, 6; Campo RFP Decl. ¶¶ 4, 6.)

In addition, Plaintiff has not filed an opposition to the instant motions to compel and has therefore waived any arguments in opposition. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose an issue in motion constitutes a waiver on that issue; Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)

The court therefore will grant the motions to compel.

Sanctions

The Civil Procedure Code requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

California Rules of Court rule 3.1348(a) further provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).

Plaintiff does not provide substantial justification nor does she point to any other circumstances that would make the imposition of sanctions unjust. The court must grant sanctions in the amount of reasonable attorney’s fees for Defendants.

However, the motions were substantially similar so that the number of hours reasonably required to prepare them should be reduced slightly. In addition, counsel will appear at the same hearing for all the motions so that it is not necessary to set aside separate time to argue each motion.

Defendants shall give notice of this ruling.

Garcia v. Loancare Servicing, LLC

30-2023-01324347

Motion for Preliminary Injunction

Pursuant to the Further Stipulation and Order to Continue Hearing on Order to Show Cause re: Preliminary Injunction filed August 17, 2023, (ROA #51), and Notice of Entry of Judgment or Order filed August 21, 2023, (ROA #54), this matter has been CONTINUED to October 30, 2023 at 8:30 a.m. in Department N15.