TENTATIVE RULINGS

 

DEPT. C-42

(657-622-5242)

 

Judge David A. Hoffer

 

September 28, 2020

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If a party intends to submit on the Court’s tentative ruling, please call the Court Clerk to inform the court.  If both parties submit, the tentative ruling will then become the order of the Court. 

 

APPEARANCES:  Unless otherwise ordered by the Court, all Unlimited and Complex proceedings will be conducted via telephonic appearance through CourtCall with each party/attorney having the option to appear by CourtCall video.  If a party is unable to appear by way of CourtCall, please contact the Court Clerk.  For more information, please see:

 

·        Civil Covid-19;

 

·        Civil Limited, Unlimited and Complex (Updated June 11, 2020); and

 

·        Third Amended Administrative Order No. 20/06.

 

Contact CourtCall at 888-882-6878 or CourtCall.  Requests for fee waivers may be submitted to CivilSRL@occourts.org or the drop box outside the Central Justice Center courthouse.

 

COURT REPORTERS:  Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·        Civil Court Reporter Pooling; and

 

·        Court Reporter Interpreter Services.

 

 

PUBLIC ACCESS:  The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129897#) and PIN for this Department (12129897#). The public will be able to listen, but not participate in the proceedings.

 

 

 

 

#

Case Name

Tentative

1

30-2018-1010869

Winston VS Akhoian

Continued to 11/30/20

2

30-2019-1054917

Morse VS Estate of Richard Nicholson

Continued to 10/26/2020

3

30-2019-1056765

Scanlan VS Borthwick

Before the Court are 3 Motions to Compel filed by Plaintiff Scanlan, LLC (as to Form Interrogatories, Requests for Production, and Requests for Admission, all Set One) and an additional Motion to Compel filed by Plaintiff Tuasivi Jeffrey Scanlan as to Special Interrogatories, Set One.

 

The Motions are GRANTED.  Plaintiffs have demonstrated that the discovery at issue was served on 4/3/20, but no responses were ever provided, even though defense counsel expressly agreed to respond by late June 2020.  (Thomas Decls. at ¶¶ 3-12, Exs. 1-4.)

 

If responses are not timely provided to Interrogatories or Requests for Production, all objections thereto are waived, and responses may be compelled. (C.C.P. §§ 2030.290(a), (b), 2031.300(a), (b).) The Motions as to the Form Interrogatories, Requests for Production, and Special Interrogatories, all Set One, are therefore granted. Defendant Daniel Borthwick is to provide responses to that discovery, without objections, within 21 days after service of notice of these rulings.

As to the requests for admission, since no responses were timely provided, all objections have been waived. (C.C.P. §2033.280(a).)  The Court further orders that the matters specified in the requests be deemed admitted.  (C.C.P. §2033.280(b)(c).) 

 

The requests for sanctions are GRANTED IN PART.  Although sanctions are warranted under the circumstances here, there is substantial duplication in the motions, no reply was needed, and a single hearing will address all 4 motions.  The Court thus finds that a total of $1,975 in fees is warranted for all 4 motions together (i.e., $493.75/motion) plus the $69.95 filing fee claimed for each motion, for a grand total of $2,254.80 in sanctions on all 4 motions.  In addition, as counsel evidently failed both to provide responses in June as proposed and to communicate with Plaintiffs’ counsel as to the discovery at issue, the sanctions are imposed, as requested, on both Mr. Borthwick and his counsel, Pauline White, jointly and severally. Such sanctions are to be paid to counsel for Plaintiffs within 45 days after service of notice of these rulings.

 

Counsel for Plaintiffs is ordered to give notice.

 

4

30-2019-1060158

Nunn VS Hometown Buffet, Inc.

The unopposed Motions to Compel filed by Defendant Hometown Buffet, Inc., as to: (1) Form and Special Interrogatories, both Set One; and (2) Requests for Production, Set One, all as propounded to Plaintiff Adrienne Nunn, are GRANTED. 

 

Moving party has demonstrated that the discovery at issue was served on 11/20/19, but no responses were ever provided, even though extensions were requested and granted.  (Allen Decls. at ¶¶ 2-17, Exs. A-F.)  If responses are not timely provided to Interrogatories or Requests for Production, all objections thereto are waived, and responses may be compelled. (C.C.P. §§ 2030.290(a), (b), 2031.300(a), (b).) The Motions as to the Form Interrogatories, Special Interrogatories, and Requests for Production, all Set One, are therefore granted. Plaintiff is to provide responses to that discovery, without objections, within 30 days after service of notice of these rulings.

 

The requests for sanctions are GRANTED IN PART.  Although sanctions are warranted under the circumstances, here there is substantial duplication in the motions, no reply was needed, and a single hearing will address both motions.  The Court thus finds that sanctions should be imposed in the reduced sum of $810 per motion – for a total of $1,620. Such sanctions are to be paid by Plaintiff, to Defendant Hometown Buffet, Inc., through its counsel of record, within 30 days after service of notice of these rulings.

 

Counsel for moving party is ordered to give notice.

 

 

5

30-2019-1061025

Simpson VS Robinson

Courts generally grant leave to amend in order to allow the pleader to improve the pleading and address weaknesses in the pleading.  In this case, the Plaintiff has added to and enhanced the information in the pleading in a manner that allows the request for punitive damages to withstand the motion to strike.  The Motion to Strike is, therefore, DENIED.

 

The concern presently is not about awarding damages (if any) as that assessment occurs far later in the case.   To plead a claim for punitive damages. the complaint need only allege ultimate facts supporting the circumstances of oppression, malice or fraud.  Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055; Clausen v. Superior Court (1988) 67 CalApp4th 1253, 1255 ("In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing entitlement to such relief must be pled by a plaintiff.").

 

This means the complaint should allege ultimate facts that show circumstances of oppression, malice, or fraud.  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)  The Court does not read the allegations of punitive damages in isolation but considers the pleading as a whole, drawing any reasonable inferences that are favorable to the pleader, while giving the complaint a liberal construction.  (Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628; Clauson v. Sup Ct. (1998) 67 Cal.App.4th 1253, 1255)  

 

Malice can be inferred by the trier of fact when considering the entire circumstances and the evidence.  There does not have to be specific evidence of ill will or improper motive.  (The Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 502-3; 6 Witkin, Summary 10th Torts § 1573 (2005).); Pfeifer v. John Crane, Inc., (2013) 220 Cal. App. 4th 1270, 1299.)

 

As an initial matter, it would not be proper for the Court to strike Paragraph 90 as requested.  There are many details in this paragraph that are recounting the underlying history and that are material to the statement of the claims.  Trespass is an intentional tort and nuisance can be too.  The intent that is required is not a bad motive per se, but that a physical entry on land was a conscious one (and not by accident).  For nuisance, the tort can be found if the invasion was unreasonable or was caused by reckless conduct. (See generally Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480–1481; Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100; see also

 

Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1306).)  

 

Here, the facts in ¶ 90 and as repeated or incorporated into the subsequent cause of action, are material to show the elements of the claims (the intent or unreasonableness).  They cannot be stricken as they are material.  (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 (it is error to strike allegations that are essential to a claim); see CCP § 431.10(b), (c).)

 

Punitive damages can be recovered in trespass/nuisance cases and it can depend on the defendant’s motive and the nature of his actions in connection with the physical entry.  Where the trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, … the measure and amount of damages are matters for the jury alone.’"  (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 322; Armitage v. Decker (1990) 218 Cal.App.3d 887, 907; Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 148.)   The malice can be inferred from the totality of the circumstances and the actions of the defendant, as noted.  (Walton v. Anderson (1970) 6 Cal.App.3d 1003, 1010).  

 

The pleading now sets forth sufficient details of the underlying events, interactions and alleged conduct of defendant to permit the inference of malice to be drawn or, at least, to conclude that it is possible for a trier of fact to find it.  At this early stage of the case, the alleged details regarding the length of time of the deprivation of rights, the disregard of multiple reports, the defendant’s shifting positions, and the Plaintiff’s accommodations could support malice or oppression and the motion to strike is denied.

 

Defendant to answer the Second Amended Complaint within 10 days.

 

Plaintiff is ordered to give notice.

 

 

6

30-2019-1080235

Le VS Do

This case involves a dispute between clients and lawyer over a contingency fee.  Defendant demurs to the first amended complaint and moves to strike portions of it.

 

Pertinent History

 

On 06/17/16, plaintiffs lost their son Richard in a tragic car accident.  He was one of three individuals killed, and a fourth injured, at the hands of Mohammad Vahhaji.  Mr. Vahhaji was insured at the time by Liberty Mutual, with a 250/500 policy.

 

07/14/16, plaintiffs retained Attorney Liem Do and his firm (hereinafter “defendants”) to represent their interests in the wrongful death claim.  The retainer agreement specified that defendants were to receive 33% of any settlement obtained prior to filing suit and, if terminated early, 33% of the highest offer received while attorney of record.

 

On 10/14/16, plaintiffs received a letter from Liberty Mutual advising that the at-fault driver had a 250/500 policy, and that Liberty Mutual would tender the entire $500,000, for which the four claimants would try to allocate.

 

On 11/21/16, plaintiffs retained the Law Offices of Thinh Van Doan & Associates (hereinafter “Doan Law”) to assume the handling of their claim.  That same day, defendants sent a letter to Liberty Mutual advising that they represented plaintiffs.

 

On 11/25/16, defendant was advised by Doan Law of plaintiffs’ decision to change firms.

 

On 11/29/16, the Liberty Mutual adjuster returned from vacation to find several documents on his desk, including:

§ Representation letter from defendants;

§ Representation letter from Doan Law;

§ Letter from defendants asserting lien against settlement.

 

In early 2017, after securing a “no asset” declaration from the driver, Doan Law formally “accepted” Liberty Mutual’s policy limits offer.  At some point thereafter, a settlement check in the amount of $166,666.67 was issued to plaintiffs.  Defendants were reportedly listed as co-payees.  (It is not clear if Doan Law was also a co-payee.)

 

On 02/08/18, defendants served on plaintiffs a demand for fee dispute arbitration before the OCBA.

 

On 04/11/18, plaintiffs and defendants appeared for the one-day hearing to determine whether defendants should be entitled to their contractual contingency fee (or any fee) for work performed in relation to the underlying wrongful death claim.  Both sides agreed to be bound by the arbitration award.

 

On 05/16/18, the OCBA arbitration panel issued its written award in defendants’ favor, awarding a total of $59,416.20.  Plaintiffs did not agree to the award.

 

On 06/06/18, defendants filed a petition to confirm the award.  That special proceeding was assigned case number 2018-997403.  Plaintiffs opposed the petition to confirm, and asked (inferentially) that the award be vacated on the grounds of fraud in the procurement, as well illegality and inequity.  The petition was heard by Judge Robert Moss, who issued a detailed ruling addressing plaintiffs’ primary concerns.  The Court found no evidence of fraud, no evidence of substantial prejudice in the matter in which evidence was received/considered, and, most pertinent, no evidence that plaintiffs put forth the claim that the retainer agreement relied upon was voidable.  The petition to confirm was granted, and judgment for $61,781.38 entered accordingly.  No appeal was taken, and, as such, that judgment is not subject to collateral attack two years later.

 

Current Litigation

 

On 07/01/19, almost a year after Judge Moss entered judgment against them, plaintiffs filed the pending new action for rescission, breach of contract, fraud, breach of fiduciary duty, and elder abuse.  The basis for each claim is basically the same, to wit: the 2016 retainer agreement is voidable under B&P §6147 because it did not disclose the absence of professional liability insurance, and, as such, defendants’ attempts to take 1/3 of the settlement were tortious and improper.

 

Defendants demurred and moved to strike the entire complaint, and sought sanctions.  The basis for these attacks is the same, to wit: plaintiffs already litigated, and lost, their claim that defendants did not have a valid agreement for 1/3 of the recovery.

 

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint.  Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.  The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452.  The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506.  A demurrer that is based entirely on an affirmative defense will not succeed unless it is shown clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.  Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42; May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1324.

 

The doctrine of claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.  It arises when a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.  A lesser aspect of claim preclusion is issue preclusion, which prevents litigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.  Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.  Similarly, collateral estoppel precludes the litigation of a claim that was related to the subject matter of the first action and could have been raised in that action, even though it was not expressly raised.  DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1076; F.E.V. v. City of Anaheim (2017) 15 Cal.App.5th 462, 473.

 

Claim preclusion does not apply because the “first” action was not a civil claim for damages but rather a special proceeding to confirm a private arbitration award.

Issue preclusion may apply to some aspects of the pending case, but does not do so clearly and manifestly from the complaint or matters subject to judicial notice.  Finally, there is collateral estoppel, which applies to matters naturally subsumed within the first action that are at issue here.  Defendants make a much stronger argument here.

 

For example, the arbitrators certainly looked at the language of the retainer agreement, and must have concluded that Liberty Mutual’s offer made on 10/14/16 was “obtained by Attorney prior to such termination” even though the evidence clearly shows that defendants never contacted Liberty Mutual to “obtain” anything.  The arbitrators found that plaintiffs “received an offer,” not that defendants “obtained” one.  Even though the award is not subject to attack for that mistake, the question is whether they properly considered it, or if it was at least raised.

 

Likewise, plaintiffs contend that the retainer agreement was voidable because it violated B&P §6147.  It is not clear if the arbitrators saw, or reached, that issue because the award is silent on the topic.  According to the briefs, the issue was not raised before the arbitrators, but, of course, it should have been.  The problem is that plaintiffs mischaracterize the issue.  CRPC Rule 3-410, which can now be found at 1.4.2, provides in pertinent part as follows: “a lawyer who knows or reasonably should know that the lawyer does not have professional liability insurance shall inform a client in writing, at the time of the client's engagement of the lawyer, that the lawyer does not have professional liability insurance.”  There is no evidence that defendants lacked insurance when they represented plaintiffs, and, of course, there is nothing in B&P Code §6147 at all about insurance coverage.  Thus, at the time it would have been raised, it was probably not enough to stem the tide.  However, since that time, if defendant indeed lacked insurance, such a shortcoming might now be actionable.  In a case of first impression earlier this year, the court in Hance v. Super Store Industries (2020) 44 Cal.App.5th 676, 687-688, found that a violation of this Rule renders the fee agreement voidable at the clients’ election, thereby relegating counsel to quantum meruit.  Were Hance available at the time, it may have made a difference in the amount awarded to defendants.  Collateral estoppel is not necessarily a death knell if there has been an intervening change in the law.  At the very least it is hard to tell from the pleading how this issue relates to the underlying action and the current causes of action because there is no reference to defendants being uninsured.

 

Request for Judicial Notice GRANTED.

 

Demurrer to entire complaint GRANTED.  However, since some issues might be barred, and some not, plaintiffs will be given 30 days leave to amend.  Perhaps in that time the parties can find a middle ground and resolve this matter.

 

 

7

30-2019-1087675

SA Recycling, LLC VS Tri-State Employment, Inc.

The Motion for Judgment on the Pleadings filed by moving party Defendant Commerce Temporary Staffing Services LLC dba Pirate (here, “MP”) as to the Third Cause of Action (for Fraud) in Plaintiff’s First Amended Complaint (“FAC”) is GRANTED with 20 days leave to amend.

 

As a threshold matter, the Third Cause of Action (“COA”) in the FAC does not appear to assert any claims as to MP.  As pled, COA 3 asserts at ¶ FR-1 that Plaintiff was defrauded by Defendant Tri-State Employment, Inc. dba Pirate Staffing (“Tri-State”).  But Tri-State was dismissed from the case on 1/29/20.  In the interim, MP was named as Doe 1 on 8/30/19 - but the FAC alleges that Does 1-5 are agents or employees of the named defendants.  (FAC ¶ 4.)  As pled, the FAC thus seems to identify MP only as an agent or employee of Tri-State, which has since been dismissed, without asserting any allegations specifically against MP.  COA 3 thus fails to state a cause of action against MP as pled.

 

In addition, COA 3 lacks adequate specificity. Every element of a fraud claim must be alleged in full, factually and specifically. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)  This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered.  (Id.) And when fraud is alleged against a corporation, the complaint must also allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Id. at 157; Lazar v. Sup. Court (1996) 12 Cal.4th 631, 645.)  

 

Here, Plaintiff asserts that Tri-State provided certificates of insurance that were “false and fraudulent” as it “did not have workers compensation insurance for the workers it assigned to work at SA's facilities.”  But no specifics are alleged as to what certificates were provided, by whom, what they said, and what in them was false.  There is also a broad date range given (11/1/13-11/17/15), without explanation as to when the fraud occurred.  Although stringent pleading requirements may be relaxed when the defendant necessarily has greater knowledge as to such facts, Plaintiff has not shown why that is so here.

 

In addition, the Opposition seems to suggest that the claim actually has some greater nuance, as it says at p. 4 that “it has come to light that Defendant's workers' compensation carrier, Lumberman's, was in the process of going into default at the time Defendant purchased the policy and Defendant should have known the policy would not hold up.”  It thus appears that the basis for the fraud claim may differ from that alleged, and, as a result, the extent to which the economic loss rule may apply is not yet apparent.

 

The Motion is therefore granted, but Plaintiff is also granted 20 days leave to amend.

 

Counsel for MP is ordered to give notice.

 

8

30-2019-1110791

Brennan VS The Llebaria Group, Inc.

Off Calendar

9

30-2020-1123046

Marshall VS Marshall

Continued to 10/26/2020

10

 

 

11