Superior Court of the State of California

County of Orange

DEPT C18 TENTATIVE RULINGS

Judge Theodore R. Howard

The court will hear oral argument on all matters at the time noticed for the hearing.  If you would prefer to submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5218.  If no appearance is made by either party, the tentative ruling will be the final ruling.  Rulings are normally posted on the Internet by 4:00 p.m. on the day before the hearing. 

COURT REPORTERS WILL NO LONGER BE PROVIDED FOR TRIAL AND OTHER HEARINGS WHERE LIVE EVIDENCE WILL BE PRESENTED.  IF A PARTY DESIRES A COURT REPORTER FOR ANY HEARING INCLUDING, BUT NOT LIMITED TO, LAW AND MOTION MATTERS, EX PARTE MATTERS AND CASE MANAGEMENT CONFERENCES, IT WILL BE THE RESPONSIBILITY OF THAT PARTY TO PROVIDE ITS OWN COURT REPORTER.  PARTIES MUST COMPLY WITH THE COURT’S POLICY ON THE USE OF PRO TEMPORE COURT REPORTERS WHICH CAN BE FOUND ON THE COURT’S WEBSITE AT:  http://www.occourts.org/media/pdf/7-25-2014_Privately_Retained_Court_Reporter_Policy.pdf

 The Orange County Superior Court has implemented administrative orders, policies, and procedures noted on the Court’s website to address the limitations and restrictions presented during the COVID-19 pandemic at Civil Covid-19. Due to the fluid nature of this crisis, you are encouraged to frequently check the Court’s website at https://www.occourts.org for the most up to date information relating to Civil Operations. 

Unless otherwise ordered by the Court, all Unlimited and Complex proceedings may be conducted via Zoom or in person. On the date of your hearing click the Department C18 Link to begin the remote online check in/Zoom appearance process:

https://acikiosk.azurewebsites.us/?dept=C18

Date: August 24, 2023

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1.	Caraveo v. General Motors LLC 22-1239002	Before the Court at present are five motions, as follows: (1) the Motion filed by defendant General Motors, LLC (“GM”) for Relief from Waiver of Written Discovery Objections (“Motion 1” below); (2) the Motion filed by Plaintiff Marcelo Caraveo (“Plaintiff”) to Compel Further Responses to Request for Production of Documents,  Set One (the “RFPs”) for RFP Nos. 8-10, 13, 15, 17, 19, 21-22, 27, 29, 30-33, and 40, and for compliance with responses agreeing to produce (“Motion 2” below); (3) Plaintiff’s Motion to Compel Further Responses to Requests for Admission (“RFAs”) Set One, for RFA 14 and to deem the RFAs admitted (“Motion 3” below); (4) Plaintiff’s Motion to Compel Further Responses to Special Interrogatories (“SROGs”) Set One, for SROG Nos. 1-6, 21-24, 30-31, 33, 36, and 37-41 (“Motion 4” below);  and (5) Plaintiff’s Motion to Compel Further Responses to Form  Interrogatories (“FROGs”) Set One, for FROG Nos. 1.1, 2.8, 15.1, and 17.1 (“Motion 5” below). Motion 1 is GRANTED. The Motion demonstrates that the responses at issue were served 2 days late due to a calendaring error, and that Plaintiff did not then note the error in subsequent meet and confer efforts. (Shugart Decl. at ROA 84, ¶¶ 5-7, 9-15.) Good cause for relief is thus shown here. Plaintiff has filed no Opposition to the Motion, and thus has not attempted to show that any prejudice would result from providing the requested relief. The Motion for Relief from Waiver, etc.  is therefore GRANTED. Motions 2-5 below, to the extent based on such waiver, are thus moot. Motion 2 is GRANTED IN PART.  The Motion as directed to the verification is DENIED, as Plaintiff has failed to show that it did not adequately comport with C.C.P. § 2015.5. The Motion is otherwise directed to 16 RFPs, as listed above. In its Opposition, GM asserts that it is prepared to produce several categories of additional documents, subject to entry of a Protective Order (“PO”).  But the reply shows that the parties already agreed upon and executed a proposed PO. (Le Decl., ¶¶ 3, 4, Ex. B.) GM must thus produce the materials it identified in its Opposition and submit that proposed PO if it requests entry thereof. On the merits, of the 16 RFPs at issue here, Plaintiff has shown that some but not all of the materials at issue should be produced. On balance, the Court finds that for the specific vehicle at issue, GM must produce documents related to the warranty work requested, including any repair instruction, bulletin or diagnostic/repair procedure identified therein, and communications related thereto.  It must also produce any warranty policy or procedure manuals or claim handling manuals for warranty or Lemon Law claims for the period between Plaintiff’s purchase and the commencement of this action, a list of any customer complaints for vehicles purchased in California for the same vehicle year, make and model, for complaints substantially similar to those alleged here [but with consumer-specific information redacted], and any TSBs or recall notices for vehicles sold in California for the same vehicle year, make and model. The Motion is therefore DENIED for RFPs 8-10, 13 and 40, as based on what has been shown here, GM’s proprietary interests therein outweigh Plaintiff’s claimed need for such materials.   But the Motion is GRANTED IN PART, as follows: (a)      for RFPs 15, 17 and 19 [as to invoices for and records of repairs or attempts to repair Plaintiff’s vehicle]; (b)      for RFPs 21 and 22 [as to non-privileged communications concerning Plaintiff’s vehicle]; (c)      for RFP 27 [as to information provided to dealerships regarding repairs for any of the alleged “defects” in Plaintiff’s vehicle]; (d)      for RFP 29 [as to TSBs or recall notices for vehicles sold in California for the same year, make, and model]; (e)      for RFPs 30-31 [as to written warranty policy or procedure manuals or claim handling manuals for Lemon Law claims or warranty claims in California, for the period between Plaintiff’s purchase and the commencement of this action]; and (f)      for RFPs 32-33 [as to customer complaints for vehicles purchased in California for the same vehicle year, make and model, for complaints substantially similar to those alleged here, but with consumer-specific information redacted].          Motion 3 is GRANTED IN PART.  The Motion as directed to the verification is DENIED, as Plaintiff has failed to show that it did not adequately comport with C.C.P. § 2015.5. On the merits, the Motion is directed only to RFA 14.  The Separate Statements submitted with the Motion and the Opposition differ as to what GM’s response was, but ROA 56 at Ex. 3 demonstrates that Plaintiff’s version is correct. The actual response is deficient, as it fails to respond to the RFA as posed. The Motion is therefore GRANTED as to RFA 14. The balance of the Motion is DENIED for the reasons addressed above. Motion 4 is GRANTED IN PART.  The Motion as directed to the verification is DENIED, as Plaintiff has failed to show that it did not adequately comport with C.C.P. § 2015.5. The Motion is GRANTED as to SROGs 1-6, 23, 24, 30, 31, 33 and 36. SROGs 1-6 seek information about GM’s asserted defenses. Although GM can point to specific documents it has produced for SROGs 3 and 6, the response must be complete, and merely pointing to such documents does not suffice for Nos. 1, 2, 4 and 5. For SROGs 23, 24, 30 and 31, GM’s responses are deficient. For No. 23, if it is not making any such claim, it must so state. For Nos. 24, 30 and 31, GM must meaningfully respond. For SROGs 33 and 36, GM responded by pointing to specific documents, but failed to actually answer the questions posed, and did not show in the Opposition that the documents identified provide the requested information. The Motion as to SROGs 21, 22, and 37-41 is DENIED. For SROGs 21 and 22, the requests appear overbroad and lack adequate specificity, while Nos. 37-41 essentially duplicate Nos. 1-5. Motion 5 is GRANTED IN PART.  The Motion as directed to the verification is DENIED, as Plaintiff has failed to show that it did not adequately comport with C.C.P. § 2015.5.  On the merits, for FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14, each response is incomplete and lacking in adequate specificity.  The Motion is therefore GRANTED for FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14. The Motion is DENIED as to FROG 2.8, as Plaintiff has not shown why the response is insufficient given the context here.  For Motions 2-5, GM is to provide supplemental responses which comport with the foregoing, and to the extent not already produced, a corresponding supplemental production, within 20 days after service of notice of this ruling. GM must also re-produce any responsive documents that could not be opened by counsel for Plaintiff in a format which allows Plaintiff’s counsel to view them. Counsel for Plaintiff is to give notice of these rulings
2.	Chavez v. FCA US, LLC 22-1263780	(Continued)
3.	El Cangrejo Nice Restaurants, Inc. v. Grand Avenue Plaza, LLC 23-1300292	A)        Demurrer Defendant Grand Avenue Plaza, LLC’s (“Defendant”) Demurrer to , plaintiff El Cangrejo Nice Restaurants, Inc.’s (“Plaintiff”) Complaint is SUSTAINED. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer.  (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer.  (Day v. Sharp (1975) 50 Cal.3d 904, 914;  Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.) “In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.]  However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]”  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)  “That plaintiff may not prove these allegations are not our concern; for, “plaintiff need only plead facts showing that he may be entitled to some relief ....” (Ibid.) “'[T]he allegations ... [are to] be liberally construed with a view to attaining substantial justice among the parties.”'”  (Gonzales v. City of San Diego (1982) 130 Cal. App. 3d 882, 884.) “ ‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” [Citations.] “ ‘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.’ ”  (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.) Defendant demurs to all four causes of action (“COA”) on the bases that they fail to state sufficient facts to constitute a COA (Civ. Proc. Code § 430.10(e)) and they are uncertain (Civ. Proc. Code § 430.10(f)). 1)       COA No. 1 – Fraud in the Inducement To state a claim for fraudulent inducement, plaintiff must plead facts showing (1) concealment of a material fact; (2) which defendant had a duty to disclose; (3) that defendant intentionally concealed; (4) and for which plaintiff was innocently ignorant of; and (5) would not have made the purchase had he known.  (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 775; Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1131; in accord, Dienes v. FCA US LLC, WL 1258118 at *1 (S.D. Cal. 2018).)  ““[W]here material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts.” [¶] As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.”  [Emphasis in original.]  (LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 337.)  Additionally, “[t]he requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 157 (“Tarmann”).) Plaintiff alleged that during negotiations for the lease, Defendant promised to renew the lease for an additional three years after the expiration of the term of the lease if Plaintiff paid for modifications/alterations which were needed on the property.  (Complaint ¶ 11.)  Plaintiff paid $86,000 in modifications and upgrades.  (Complaint ¶ 12.)  Defendant refused to renew the lease for the additional three year period  as promised.  (Complaint ¶ 13.)  Plaintiff alleges Defendant never intended to offer Plaintiff a new lease, but instead made the false representation that it would renew the lease with the intent to induce Plaintiff into executing the Lease and making the modifications/alterations to the Property.  (Complaint ¶¶ 14-15.)   Plaintiff relied on those representations to enter into the Lease.  (Complaint ¶ 16.)  Plaintiff was ignorant the statements were misrepresentations and could not have reasonable discovered the falsity of the statements at the time, and would not have made $86,000 in modifications to the Property.  (Complaint ¶¶ 17-18.)  Plaintiff has suffered monetary damages.  (Complaint ¶ 19.) Plaintiff has largely pled sufficient facts against Defendant, however as Defendant is a corporate entity, Plaintiff is required to allege the names of the persons who made the alleged misrepresentations, their authority to speak on behalf of Defendant, whom they spoke with, and when the statements were made, which Plaintiff failed to do.  (Tarmann, supra, 2 Cal. App. 4th at 157.) Plaintiff’s opposition merely cites to the elements of a cause of action for fraud and claims that Complaint was sufficiently pled.  However, as noted, the requirements for alleging fraud against a corporate entity have not been met. The Demurrer is SUSTAINED with leave to amend as to this COA. 2)       COA No. 2 – Breach of Contract “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.”  (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) Plaintiff has alleged the existence of a contract (the Lease) and has attached a copy of the Lease.  (Complaint ¶¶ 10, 22, Ex. 1.)  This COA only states that Plaintiff performed all conditions, covenants, and promises of the agreement made in March 2020.  (Complaint ¶ 22.)  Defendant breached the Lease by refusing to renew the Lease for a new three-year period.  (Complaint ¶¶ 11, 13, 23.)  Plaintiff was damaged from Defendant’s alleged breach.  (Complaint ¶¶ 14-15, 24.) The only written agreement attached to the Complaint is the Lease, which does not state anything regarding the option to renew the lease for a three-year period.  (Complaint, Ex. 1.)  Plaintiff has not produced any written documents supporting the renewal agreement.  As noted by Defendant the contract states: “This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective.”  (Complaint, Ex. 1, ¶ 22.) Further: “This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification.”  (Complaint, Ex. 1, ¶ 46.) The contract does not contain the promise to extend the lease, nor does the Complaint allege or have attached any other agreement between the parties that suggests a lease extension was promised.  Plaintiff has alleged no other breach by Defendant of the contract.  Plaintiff argues an agreement does not necessarily need to be written and that it can be in part oral.  Plaintiff also incorrectly attempts to argue the contract did not contain an integration clause or that the clause did not intend to integrate the full agreement between the parties.  As noted, supra, the contract does contain a valid integration clause.  To the extent there may have been an oral agreement between the parties to extend the lease after the original lease term had ended, that oral agreement would be barred by the statute of frauds as it could not be performed within one year of the making and as the additional three-year lease term would not be permitted on an oral contract.  (Civ. Code § 1624(a)(1) and (3).)  The statute of frauds is a legal issue that may properly be decided on demurrer. (Parker v. Solomon (1959) 171 Cal. App. 2d 125, 136.)  The alleged oral agreement between Plaintiff and Defendant would require any such agreement to be performed within one-year, or otherwise to be written down.  As the terms of the oral agreement were not capable of being completed within one-year, and as there is no written memorialization of such an agreement, the alleged oral agreement would be barred. The Demurrer is SUSTAINED with leave to amend as to this COA. 3)       COA No. 3 – Promissory Estoppel “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ [Citation.]”  (Joffe v. City of Huntington Park (2011) 201 Cal. App. 4th 492, 513.) Plaintiff alleges that during negotiations for the lease, Defendant made a promise to renew the lease for another three-years if Plaintiff made the required modifications to the Property.  (Complaint ¶¶ 11, 26.)  The promise was made to induce Plaintiff to incur such costs and expenses.  (Complaint ¶ 27.)  Plaintiff relied on the promise and incurred $86,000 in costs for the modifications.  (Complaint ¶ 28.)  Defendant refused to renew the Lease as promised.  (Complaint ¶ 29.)  Plaintiff seeks an order requiring Defendant to renew the lease for three-years, or requiring Defendant to offer a new lease.  (Complaint ¶¶ 30-31.) Defendant argues, “‘[e]stoppel cannot be established from ... preliminary discussions and negotiations.’ ”  (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal. App. 4th 411, 417 (“Granadino”.)  However, in Granadino, the complaint alleged defendant told plaintiffs their application was under review for modification and a trustee sale was no longer scheduled.  The court noted this wasn’t a promise, as it was not an assurance that someone would do something.  (Id.)  Instead, it was just a statement of fact that did not include a promise.  Unlike Granadino, Defendant in this matter is alleged to have orally promised to extend the lease is Plaintiff covered the costs of the modifications to the Property.  Defendant did not follow through with the alleged promise despite Plaintiff allegedly spending $86,000 on the modifications. Defendant also argues that promissory estoppel cannot be invoked wherein the promisee’s reliance was bargained for and contends Plaintiff’ reliance was bargained for as part of the lease.  “In other words, the Complaint makes it clear that Plaintiff entered into the Lease in exchange for Plaintiff making the alleged modifications.”  (Demurrer, 8:5-7.)  However. this is incorrect.  The Complaint alleges Plaintiff made the modifications in exchange for Defendant agreeing to extend the lease by three-years.  (Complaint ¶ 12.)  In reliance on Defendant’s promise, Plaintiff spent $86,000 on modifications.  Since Defendant failed to renew the lease as allegedly promised, Plaintiff was injured in the amount he expended in detrimental reliance on Defendant’s alleged statement.  Plaintiff has sufficiently pled this COA.  However, as with the breach of contract COA, the issue of statute of frauds is still present.  As such, the Demurrer is SUSTAINED with leave to amend as to this COA. 4)       COA No. 4 – Declaratory Relief “To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.’ ””  (Jolley v. Chase Home Fin., LLC (2013) 213 Cal. App. 4th 872, 909.)  “Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs.”  [Emphasis added.]  Id.  “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court.”  (Maguire v. Hibernia Sav. & Loan Soc. (1944) 23 Cal. 2d 719, 728.)  “The purpose of a declaratory judgment is “to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation.”’”  (Id., at 729.) Plaintiff alleges a controversy exists between the parties concerning the right to possession and quiet enjoyment of the Property, as well as Plaintiff’s entitlement to immediate repayment of monies incurred by way of alleged false promises made by Defendant.  (Complaint ¶ 33.)  This COA is not properly alleged as the three-year extension is not part of any written contract.  Additionally, it improperly seeks to redress past wrongs such as compensating Plaintiff for monies expended on the modifications to the Property.  Neither of these are the proper subject of declaratory relief. Plaintiff did not file any opposition to this COA.  The demurrer is SUSTAINED with leave to amend as to this COA. B)        Motion to Strike Defendant’s Motion to Strike (“MTS”) is MOOT in part, GRANTED in part, and DENIED in part. Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .”  (Civ. Proc. Code § 435(b)(1).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.”  (Civ. Proc. Code § 436(a).) Defendant requests the court strike the following: 1. Paragraph 20, pg. 4, in its entirety. 2. Prayer at page 7, lines 8-10, which states: “5. For exemplary and punitive damages in an amount subject to the discretion of this Court, but no less than an amount which will punish the Defendants for their actions and omissions to act.” 3. Prayer at page 7, line 8, which states: “For attorneys fees and costs of litigation.” The MTS is MOOT as to Complaint ¶ 20 as that falls under COA No. 1 – Fraud in the Inducement, which was successfully demurred to as noted above. The request for punitive damages is GRANTED as the only paragraph that contained punitive damage language was Complaint ¶ 20, which was successfully demurred to.  No other COA contain any punitive damage language and even if they did, Defendant successfully demurred to each of those COA. As to the request for attorney fees Defendant contends Plaintiff cannot seek an award for attorney fees as Plaintiff is seeking damages based upon an oral contract and that without a specific provision granting attorney fees and costs, those cannot be awarded.  However, the written contract does contain an attorney fee provision.  (Complaint, Ex. 1 at § 31.)    Under the terms of the written lease, the action only needs to be one involving the Property or to declare rights under the written contract.  As the present lawsuit involves the Property, under the specific terms of the lease, attorney fees are available to the prevailing party. The MTS is DENIED as to attorney fees. Plaintiff is given leave to file an amended complaint within 15-days written notice of the court’s ruling.  Defendant to give notice.
4.	Medina v. Securitas Security Services USA, Inc. 22-1298666	The motion by Daniel R. Sarther, Esq., for pro hac vice admission to appear as counsel for defendants Jimmy Norman Garcia Leiva and Securitas Security Services USA, Inc. is GRANTED. The Court finds that Mr. Sarther has complied with the requirements of California Rule of Court Rule 9.40.  Attorney Daniel Sarther ordered to give notice of this ruling.
5.	Northwood Villas Homeowners Association v. Sponer 21-12125942	A. Anti-SLAPP Motion The Special Motion to Strike filed by Defendant Stephen Sponer is DENIED. In ruling on a special motion to strike made under CCP§ 425.16, the trial court engages in a two-step process. “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.”  (Baral, 1 Cal.5th at 396.)  The Court “accepts the plaintiff's evidence as true and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law.”  (Baral, 1 Cal.5th at 385.) “The anti-SLAPP statute is ‘designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” [Citation.]’ [Citation.]” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1008-1009 (Bonni).) Defendant asserts that this action is based on protected activity, as all the communications alleged were made in a public forum and concerned HOA business. Defendant provides communications with the HOA to prove that all of this stems from HOA business. However, the allegations in the FAC that Defendant identifies as arising out of protected activity all concern allegations of harassment and threats by Defendant aimed at board members and vendors. While the communications provided by Defendant with his motion and reply certainly concern HOA business and public interest, that connection does not extend to the activity described in the FAC. “[T]he statement must in some manner itself contribute to the public debate.” Li v. Jin (2022) 83 Cal.App.5th 481, 495 (quoting FilmOn, 7 Cal.5th at 150).  There is no evidence here that any of Defendants’ conduct or statements contributed to the public debate in any way, particularly as the bulk of the alleged conduct is simply Defendant yelling various threats and expletives at a specific board member.  Defendant’s assertions that he is innocent of any wrongdoing has no place in an anti-SLAPP analysis. The question is whether the causes of action in the complaint arise out of protected activity. In this case, they do not. As such, Defendant has failed to establish that the challenged claim arises from activity protected by section 425.16 The motion is therefore DENIED. Demurrer The Demurrer to the First Amended Complaint filed by Defendant Stephen Sponer is OVERRULED. A demurrer “tests the legal sufficiency of factual allegations in a complaint.” (Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs’ well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Preliminarily, Defendant requests judicial notice of the Petition and the FAC in this case and there is no opposition, so judicial notice of the existence of the documents may be granted. Defendant asserts that the entire complaint is barred by res judicata and collateral estoppel based on the order in the restraining order case. However, Defendant provides both no documents as to a ruling in the Restraining Order case, nor does that case present the same questions of law and fact as this case, despite involving the same general individuals.  Further, Plaintiff asserts that there was no final judgment, as the case was dismissed without prejudice and was not litigated on the merits. As such neither res judicata nor collateral estoppel apply. Defendant further argues that Plaintiff has unclean hands and is not doing equity but provides no authority for sustaining a demurrer on such grounds. Defendant later asserts that the HOA has not adequately pled that the HOA board voted for or approved this litigation, and thus there is no authority for this litigation.  Defendant is essentially alleging that Plaintiff is not following HOA rules in initiating this action, which is not a question before the court at this time. Per Civil Code § 5980, the association has standing to bring this action. As such Defendants demurrer to the complaint as a whole on these grounds is OVERRULED. First Cause of Action: Breach of Governing Documents Defendant asserts both that this is not a legitimate cause of action and that Plaintiff does not have standing to bring the action because it does not plead damages.  However, Defendant cites Civil Code § 5980 which clearly states that “An association has standing to institute, defend, settle, or intervene in litigation… in matters pertaining to the following: (a) Enforcement of the governing documents.” Further, the allegations in the FAC assert that “Defendant’s actions as outlined above violate the CC&Rs” and indicate which sections and how Defendant has allegedly violated the governing documents. (FAC ¶ 34-40.)  As such, the first cause of action is adequately pled and the demurrer as to the first cause of action is OVERRULED. Second Cause of Action: Nuisance Defendant asserts that the only conduct alleged is oral/written statements which can never be a nuisance, but provides no legal authority for that assertion. To constitute a nuisance, an activity must: 1) create an interference with the plaintiff's use and enjoyment of his or her property; 2) the invasion of the owner's interest in the use and enjoyment of his or her property must be substantial, based on proof of significant harm judged by an objective standard; and 3) the interference with the use and enjoyment must be unreasonable, determined by an objective standard as to whether the gravity of the harm outweighs the social utility of the tortfeasor's conduct, as a question of fact. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) Here, the FAC alleges that Defendant’s conduct interferes with both the HOA’s ability to operate and interferes with the owners’ use and enjoyment of the property within the development. The allegations are sufficient to plead nuisance and the demurrer as to the second cause of action is OVERRULED. Third Cause of Action: Declaratory Relief Defendant’s sole argument as to the declaratory relief cause of action is that it is an equitable remedy, not a cause of action. While the case law cited by Defendant shows that the basis for declaratory relief is some independent cause of action, it does not bar declaratory relief as being pled as a separate claim. Indeed, a complaint for declaratory relief must show “1) a proper subject of declaratory relief, and 2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) Here, Plaintiff asserts that declaratory relief is necessary as they require a judicial declaration that Defendant’s past actions violated the Declaration and enjoin Defendant from future violations. As such, the demurrer as to the third cause of action is OVERRULED. Moving party to give notice.
6.	Perales v. The Regents of the University of California 21-1204847	(Off calendar)
7.	Refaie v. Villa Siena 21-1190391	The Motion for Summary Judgment filed by Defendant/Cross-Defendant, Wiegert Construction, Inc. (“Wiegert”) is DENIED. In ruling on a motion for summary judgment, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (CCP § 437c(c)) and must view the evidence and inferences “in the light most favorable to the opposing party.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see Ragland v. U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.) The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination.  The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.”  (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (citing text).) Wiegert moves for an order granting summary judgment in its favor as to the complaint of Plaintiff, Amal Al Refaie (“Plaintiff”) and the cross-complaints of Alta Services Inc., dba Alta Contracting (“Alta”) and Sudyka Construction, Inc. (“Sudyka”). The Court finds triable issues exist as to whether Wiegert owed Plaintiff a duty of care and whether its work caused Plaintiff’s injury.  Wiegert focuses on evidence purportedly showing that it did not begin work on the temporary walkways until after the incident, but Wiegert’s own evidence confirms that it performed “general preparation” and “doorway-related work” prior to the incident.  (SSUF 60; Declaration of Michael Wiegert [“Wiegert Decl.], ¶ 20.)  The extent of this “general preparation” and “doorway-related work” is unclear from the moving papers.  Further, there is no discussion or evidence presented by Wiegert showing that this “general preparation” and/or “doorway-related work” could not have caused or contributed to Plaintiff’s injury.  Thus, triable issues exist as to whether Wiegert owed Plaintiff a duty of care at least with respect to said “general preparation” and “doorway-related work” and whether said work was a substantial factor in causing Plaintiff’s injury.  (Cal Civ. Code §1714; see also, Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1271.) As such, Wiegert failed to meet its initial burden of demonstrating the nonexistence of any triable issue of fact as to duty of care, breach and causation.  (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 [elements of negligence].)  Accordingly, the burden did not shift to Plaintiff. Even if Wiegert met its initial burden, Plaintiff submitted evidence raising a triable issue of fact as to when Wiegert began work on the temporary walkways at the location of the incident.  (See Plaintiff’s Exhibit B [Deposition of Brandon Sandridge at pp. 52:20-53:3; 57:12-22; 64:6-15; 72:8-13; 72:24-73:8; 73:19-21; 75:1-4, 13-19; and 75:8-12].)  The Court finds the foregoing evidence is sufficient to raise a triable issue of material fact as to when Wiegert began work on the temporary walkway and thus whether Wiegert owed Plaintiff a duty of care. Because triable issues remain as to whether Wiegert can be liable for Plaintiff’s injuries, triable issues also necessarily remain as to whether Wiegert can be held liable to Alta and Sudyka on their cross-complaints for equitable indemnity, contribution, and declaratory relief. Accordingly, the motion is DENIED. Plaintiff’s request for judicial notice is GRANTED.  (Ev. Code §452(d).) The Court declines to rule on Wiegert’s evidentiary objections.  (C.C.P. § 437c(q).) Counsel for Plaintiff is to give notice.
8.	Zhao v. Mastro’s Steakhouse 21-1179949	(Off calendar)
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