TENTATIVE RULINGS

 

DEPT. C-16

(657-622-5216)

 

Judge David A. Hoffer

December 5,  2022

 

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: Department C16 conducts non-evidentiary proceedings, such as law and motion, remotely by Zoom videoconference.  All counsel and self-represented parties appearing for such hearings should check-in online through the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html prior to the commencement of their hearing.  Once the online check-in is completed, participants will be prompted to join the courtroom’s Zoom hearing session.  Check-in instructions and an instructional video are available on the court’s website.  All remote video participants shall comply with the Court’s “Appearance Procedures and Information--Civil Unlimited and Complex” and “Guidelines for Remote Appearances” also posted online at https://www.occourts.org/media-relations/aci.html.  Parties preferring to be heard in-person, instead of remotely, are to provide a notice of in-person appearance to the court and all other parties five (5) days in advance of the hearing.

 

Court Reporters: Parties must provide their own remote court reporters (unless they have a fee waiver). 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

 

THE PARTIES ARE PROHIBITED BY RULE OF COURT AND LOCAL RULE FROM PHOTOGRAPHING, FILMING, RECORDING, OR BROADCASTING THIS COURT SESSION.

 

 

#

Case Name

Tentative

1

30-2018-1000390

S & S Engineering and Construction VS Van Swae

Before the Court are two motions.  The first motion is a brought by Jennifer Van Swae seeking an order awarding her attorney fees in the amount of $63,260 against plaintiffs S&S Engineering And Construction D.B.A. Custom Auto Body (“S&S”)  (and an award of costs in the amount of $9,739.89 against S&S, Chad Susag and Sunbelt Limited Companies, Inc. (“Sunbelt”)).  The second motion is brought by plaintiffs S&S, Susag, and Sunbelt seeking an order taxing the memorandum of costs filed by the defendants.  The motion for attorney fees is DENIED.  The motion to tax costs is GRANTED in part.

 

This case arises from a dispute between various parties as to the use/improvement of a piece of vacant land in Dana Point.  A court trial was conducted on multiple dates in 2021 and 2022 resulting in a verdict for the defense on all causes of action.  Statements of Decision were entered on 12/17/21 and 7/8/22.  A Memorandum of Costs was filed on 7/29/22, along with a Motion for Prevailing Party Costs and Attorney Fees.  A Motion to Tax Costs was filed on 8/9/22.

 

C.C.P. § 1032(a)(4) defines the "prevailing party" as "the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." See, C.C.P. § 1032(a)(4).  The defendants were the prevailing party in the litigation.

 

Van Swae seeks an order awarding attorney fees pursuant to the provision in the lease agreement that was attached to the complaint which provides for attorney fees to the prevailing party “in any action or proceeding arising out of this Agreement.”  Presumably, Van Swae seeks the attorney fees in her capacity as the trustee for the VanSwae Harrison Trust as that was the landlord under the lease.  The motion for attorney fees was opposed by plaintiffs in a formal opposition and the same arguments were made in their Motion to Tax.  Since the issues are the same, they are all discussed in this single ruling on both motions.

 

Van Swae contends that Civil Code §1717 requires an award of fees because the lawsuit was to enforce the lease.  The Court disagrees as the plaintiffs did not sue to enforce the written lease but to enforce a purported oral contract to extend both the duration and the scope of the lease.

 

Furthermore, while Code of Civil Procedure §1021 does authorize recovery of attorney’s fees for the litigation relating to claims that arose out of the lease, the claims litigated in this case did not so arise, but instead arose from separate negotiations carried on between Susag and non-party James Alee, on the one hand, and Steven Haythorne (Van Swae’s broker) on the other.  Fundamentally, plaintiffs argued that Haythorne promised to enter into a new and long-term lease that would include both the leased property and the rear (and larger) portion of the lot in exchange for the provision of services, including grading and compaction of the land.  Moreover, a great deal of the trial was focused on obtaining payment for the services rendered – having nothing to do with any contract whatsoever.  Finally, it is important to note that

the action involved numerous people who would have nothing to do with the contract including Susag, Sunbelt Limited Companies, Alee, Van Swae as an individual and as trustee for the Harrison Family Trust, John Kelly Harrison as an individual and as trustee of Lorrin Harrison Jr. Trust and the Harrison Family Trust, Haythorne, and Salt Creek Realty, Inc.

 

Thus, while the court realizes that the question of whether this dispute arose from the written lease is an extremely close one, the court – based on its strong recollection of the evidence from service as the trial judge -- finds that the case did not arise from the written lease but from oral discussions and, therefore, denies the request for attorney fees.

 

With regard to costs, the defendants timely submitted a Memorandum reflecting $9,739.89.  The Defendants timely filed a Motion to Tax Costs as follows: (1) Court Transcript fees of $4,241.87 (under “Court Reporter Fees”); (2) Court Reporter Fees of $673.50 (under “Court Reporter Fees”); (3) Defendant’s parking and mileage costs during trial:  $168 and $659.24 = $827.24 (under “Other”) and (4) Defendant’s meals during trial: $145.28 (under “Other”)

 

Except as otherwise provided, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (§ 1032, subd. (b).) To obtain costs, the prevailing party must file and serve a memorandum of costs, which “must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700(a)4.)  To challenge costs, a party must file a motion to strike or tax the costs.  Defendants did not oppose the motion as to the specific items of costs sought to be taxed which are discussed below.

 

Court Transcript fees of $4,241.87 (under “court reporter fees”):  Plaintiffs assert that Invoice Nos. 91391, 91939 and 92473 are charges totaling $4,241.87 by the court reporter for preparing transcripts at trial.  This appears correct and is not disputed by Defendants.   CCP §1033.5(b)(5) states “The following items are not allowable as costs, except when expressly authorized by law: …(5) Transcripts of court proceedings not ordered by the court.”  Accordingly, the Court will tax $4,241.87.

 

Court Reporter Fees of $673.50:  Plaintiffs object to the charges for court reporter fees at trial because they claim the parties had an agreement to share costs at trial.  However, these costs are recoverable and no agreement was submitted to the court.  Even if an agreement was submitted, it would not change the fact that the costs are recoverable.  Accordingly, the Court will not tax these costs.

 

Defendant’s parking and mileage costs during trial:  $168 and $659.24 = $827.24 (under “other”):  Plaintiffs object to these charges as being not authorized under the Code.  CCP §1033.5(a)(3)(C) authorizes recovery of “Travel expenses to attend depositions.”  It does not authorize recovery of the travel expenses for trial.  Accordingly, the Court will tax $827.24.

 

Defendant’s meals during trial: $145.28 (under “other”):  Plaintiffs object to defendant’s request for reimbursement for meals during trial.  Meals are not allowed as recoverable costs. Accordingly, the Court will tax $145.28.

 

In connection with both motions, the Court finds that the defendants were the prevailing party at trial.  The court declines to order attorney fees.  The Court further orders that the defendants’ Memorandum of Costs will be taxed in the total amount of $5,214.39, leaving remaining costs of $4,525.50.

 

Moving party is ordered to give notice of this ruling and to provide a proposed amended judgment.

 

 

2

30-2019-1103242

Robinson Pharma, Inc. VS World Product Solutions, LLC

Before the Court are three motions: a Demurrer filed by Defendants Private Label Sk.in, N.A. LLC (“PLS”) (formerly d/b/a Quality Harbor and World Product Solutions); Evora Worldwide, LLC (“Evora”); EWorld Fulfillment Holding Company, LLC (“EWorld”); and Eric Pogue (“Pogue”); and two Motions to Quash Service of Summons filed by multiple specially appearing defendants.

 

For the reasons discussed below, the hearings on all three motions are CONTINUED to January 9, 2023, at 1:30 p.m. in this department.

 

Regarding the demurrer (ROA 179), the Court finds that supplemental briefing is needed to address the choice of law issue.  Pogue, Evora and EWorld argue that Delaware law controls Plaintiff’s alter ego claims against them and that the First Amended Complaint (“FAC”) fails to plead facts establishing alter ego liability under Delaware law.  Plaintiff offers no authority to refute Moving Defendants’ argument that Delaware law applies.

 

Moving Defendants look to Corp. Code, § 17708.01 (a) and federal cases interpreting that statute in support of their position that Delaware law applies to the FAC’s alter ego allegations.  Generally, Corp. Code, § 17708.01 applies the home state law on issues involving the “internal affairs” of the corporation.  “The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands.”  (https://i1.next.westlaw.com/StaticContent_49.1.1024/images/v1/flag_yellow_small.png?ignoreDeliveryNewLineVaughn v. LJ Internat., Inc. (2009) 174 Cal.App.4th 213, 223.)

 

Multiple federal cases have held that Corp. Code, § 17708.01 encompasses alter ego liability.   (See MacRae v. HCR Manor Care Services, LLC (C.D. Cal., Sept. 14, 2017) 2017 WL 11480091 at *3 [discussing cases].)

 

However, in California there is “a vital limitation to the internal affairs doctrine: “The local law of the state of incorporation will be applied ... except where, with respect to the particular issue, some other state has a more significant relationship ... to the parties and the transaction [.]” (Rest.2d Conf. of Laws, § 309, p. 332; italics added.) Indeed, “[t]here is no reason why corporate acts” involving “the making of contracts, the commission of torts and the transfer of property” “should not be governed by the local law of different states.” (Id. at § 302, com. e, p. 309.)”  (Lidow v. Superior Court (2012) 206 Cal.App.4th 351, 359.)

 

As the parties did not address the above California limitation on the internal affairs doctrine and its applicability to the present case and given the federal cases holding that Corp. Code, § 17708.01 does encompass alter ego liability, the Court finds that supplemental briefing on these issues is warranted.

 

The parties are ordered to submit additional briefing of no more than 6 pages on the choice of law issue.  Moving Defendants’ brief is due by 12/16/22.  Plaintiff’s brief is due by 12/27/22.

 

Given that the ruling on the demurrer will impact the pleadings, the Motions to Quash are also continued to January 9, 2023, at 1:30 p.m. in this department.

 

Counsel for Plaintiff is ordered to give notice of this ruling.

 

3

30-2020-1147408

Gonzalez VS Xia

Off Calendar

4

30-2020-1167590

Patel VS Loera

The motion by Defendants Rodolfo Loera and EBK Woodworking, Inc. to tax plaintiff Amar Patel’s memorandum of costs is GRANTED and plaintiff’s Memorandum of Costs (ROA 252) in the original amount of $108,092.85 is taxed in the amount of $62,665.01, leaving a total remaining costs of $45,427.84.

 

Defendants object to six items of costs in plaintiff’s memorandum of costs.  CCP §1033.5(c) states in pertinent part: “An award of costs shall be subject to the following: (1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.”

 

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Citations) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute (Citations), a court has no discretion to award costs not statutorily authorized.”  (Ladas v. California State Auto. Ass'n (1993) 19 CA4th 761, 774.)   

 

Accordingly, if the moving party has properly objected to a particular cost, then the burden of proof is on the RP to establish (1) cost is allowable, (2) cost reasonably necessary to conduct of litigation, and (3) cost reasonable in amount.  Here, the defendant has properly objected to six items of costs.

 

Filing and Motion Fees (Item 1):  The charges are based on the invoice from First Legal which charged at various times either  $33.50 or $32 for electronic filing.  It is evident from the invoices submitted that some of the charges were for other than filing such as for rush charges, advances or witness fees and other additional charges.  The Court has carefully analyzed the lengthy invoice and will tax $931.50 in charges under this section.

 

Deposition Costs (Item 4):  Plaintiff seeks recovery of deposition costs for Amar Patel in the amount of $861.40, but the invoice shows that only $506.40 was charged.  Plaintiff states that the balance was for the deposition of Rupa Patel but that is not what the memo of costs states and therefore $355 will be taxed.  Plaintiff also seeks $700.10 for transcribing the deposition of Paul Malherbe, PA-C, but only $636.45 was actually charged with the remainder being due if the payment was late and therefore $63.65 will be taxed.  Accordingly, the Court will tax a total of $418.65 in charges under this section.

 

Witness Fees (Item 8)

CCP §998(d) states: “(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs.” (emphasis added.)  Defendant has objected to the expert witness fees and plaintiff bears the burden of proof to show cost should be recovered.  (Ladas v. California State Auto. Ass'n (1993) 19 CA4th 761, 774)  Plaintiff obtained a judgment in excess of the 6/27/22 CCP §998 offer to Rudolfo Loera.

 

Dr. Eric McCabe (Physical Therapy):  Plaintiff submits an invoice for a total of $7,000.  Dr. McCabe billed 4 hours at $500 per hour for trial testimony.  A reasonable hourly rate would be $400 per hour for a total of $1,600.  The invoice also shows 10 hours for “reviewing records” but there is no date on which the work was performed and therefore plaintiff has not met his burden to establish the costs are recoverable as post-offer charges.  Accordingly, the Court taxes $5,400.

 

Paul Malherbe (PA from the Total Care Walk-In Clinic):  Invoice shows a total of $5,000 consisting of 2 hrs (at $300 per hour) on 6/19/22 to prepare for deposition, 8 hrs on 7/26/22 to prepare to testify at trial and $2,000 to attend trial.  This was a treating healthcare provider, presumably familiar with his patient. Plaintiff  has not submitted evidence that the hourly fee that Malherbe is claiming was a reasonable sum.  A more reasonable hourly rate would be $200 per hour.  Allowing 6 hours to prepare for deposition and trial, and 4 hours to attend trial would sum to 10 hours at $200 for a total of $2,000 Accordingly, the Court will tax $3,000.

 

Dr. Nicholas Rose (Defense Expert):  Defendants seek to tax Dr. Rose’s fees, claiming that, when plaintiff deposes defendant’s expert, it is an ordinary witness fee.  The Court disagrees. (Chaaban v. Wet Seal, Inc., 203 Cal. App. 4th 49, 54–55.)  The Court denies the request to tax Dr. Rose’s fees.

 

Brad Rutledge (Engineer):  Defendants seek to tax charges by plaintiff’s accident reconstruction and biomechanical expert who was deposed on July 15, 2022 and testified at trial on August 3, 2022.  Plaintiff claims $14,565 for this expert.  Plaintiff submits a bill which purports to reflect Rutledge’s time working as an expert on this case.  However, the three pages of invoices do not actually state that the time billed was by Rutledge.  The billing rates reflected in the invoices are $130, $225, $300, $400, $500.   At the top of the invoice, there are two names listed in addition to Rutledge and plaintiff has not established that the bill pertains to Rutledge’s work.  The memo of costs lists only Brad Rutledge as the expert and does not list his hourly rate or indicate that he charged various rates.  If the work was done by Rutledge’s support staff, that is not stated in the memo of costs.  And, if the work was done by multiple people, plaintiff has not met his burden of showing that the work by other people (who did not testify) was reasonably necessary to the conduct of the litigation.  Without knowing who was doing the work, plaintiff has not met his burden of showing that the cost was necessary to the conduct of the litigation in this admitted liability case.  Also, plaintiff has failed to meet his burden to establish that the charges were reasonable in amount.  In plaintiff’s designation of experts, he does not state Rutledge’s rate but only states that the “fee for providing deposition testimony will be provided.” (Exhibit C to Meininger Decl.)  The only thing of which the Court is certain is that its records show Rutledge testified on 8/3/22.  In making an overall assessment of the invoices submitted for work purported to have been done by Rutledge, the court will tax $5,561.50.

 

Khyber Zaffarkhan, DO:  Plaintiff’s physical medicine treating expert testified on 8/2/22.  Plaintiff claims $30,600 in total charge.   He billed 8.75 hours to prepare for his depo at $800 per hour for $7,000.  A more reasonable amount would be 8.75 hours at $450/hr for total of $3,937.5. (Note that plaintiff’s retained plastic surgeon expert charges $450 per hour.  Also, plaintiff has not submitted any evidence that the rate is reasonable or customarily charged, other than to submit the invoice.)  Two weeks later, he then billed 3.25 hours at $800 per hour ($2,600 total) to prepare to testify at trial.  Converting the rate to $450/hr would convert the allowable amount to $1,462.50.    His invoice further shows that he billed one hour of time at $12,000 per hour to testify at trial.  The Court’s records confirm that he testified for approximately one hour. A more reasonable rate would be  $450 per hour.  The Court will add three hours to the amount billed to account for waiting and travel time which generates a total of $1,800.  After testifying, he continued to bill a total of $8,000, all of which is taxed.   He also included a bill for a $1,000 report prepared months before the §998 offers.  Accordingly, the Court taxes plaintiff’s request for costs based on Khyber Zaffarkhan’s invoices in the amount of $23,400.

 

James Coleman, MD:  Plaintiff’s treating plastic surgeon testified on the afternoon of August 4, 2022.  Plaintiff submits an invoice totaling $25,700 with 26 hours of preparation at $450 per hour plus $14,000 for testifying at trial.  The $450/hr. billing rate is reasonable but much of the time spent was unreasonable and/or not recoverable.  Further, the $14,000 fee for testifying was unreasonable.  The 4 hours for “Review of Imaging Medical Literature” does not show when work was performed and therefore plaintiff has not met burden of showing expense was post-offer.  The 10 hours spent on 8/7/22 and 8/8/22 for review of records occurred after Coleman testified and plaintiff has not met his burden to show it was reasonably necessary to the conduct of litigation.  The 12 hours of “Trial Prep/Review Depositions and Records” are excessive and not reasonable given that he provided all his expert opinions at his July 19, 2022 deposition. (Declaration of Scott Meininger, ¶ 10.)  Further, the plaintiff has not submitted evidence of the voluminous nature of the records or depositions involved in this case.  This expert’s area of expertise was plastic surgery and therefore it would not be necessary to review voluminous orthopedic records or multiple depositions, to the extent such existed.   A more reasonable amount of time would have been 8 at $450/hr for a total of $3,600.  Coleman also billed a “full day” for his afternoon of trial testimony with an invoice that equates to 31 hours of time at his rate of $450/hr. for approximately 2 hours of testimony. This is not reasonable.  The Court will allow 7 hours at $450/hr for a total of $3,150.  Accordingly, the Court taxes plaintiff’s request for costs based on Dr. Coleman’s invoice in the amount of $18,950.

 

Models, blowups, and photocopies of exhibits (Item 11):  The plaintiff’s request for costs for photocopies of exhibits is proper (CCP §1033.5(a)(12))  However, plaintiff’s purchase of equipment in the form of notebooks is not allowed.  Accordingly, the Court taxes Item 11 in the amount of  $59.96.

 

Court reporter fees (Item 12):  Plaintiff includes $1,338 for a transcript of trial testimony which he says was helpful.  This is not an authorized cost but plaintiff asks the court to exercise its discretion to award the cost.  The Court declines the request and taxes Item 12 in amount of $1,338.

 

Other (Item 16):  Defendant contests the $3,605.40 in charges by plaintiff’s investigator as improper “investigative” costs, which are expressly disallowed under Code of Civil Procedure section 1033.5(b).  Plaintiff claims the costs are for serving subpoenas but has failed to submit evidence that the investigator was a registered process server (CCP §1033.5(a)(4)) and would have been part of Item 5.  Plaintiff also argues that these are “messenger fees” similar to the “delivery charges” referenced in Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 776 and that they are necessary to the litigation.  However, in Ladas, the RP submitted a declaration setting forth “substantial evidence that these charges were reasonably necessary.” (Id at 776)  Plaintiff has not done that in this case.  Instead, plaintiff only submitted a declaration showing that his attorney received a bill from the investigator without explanation as to how each of the charges were necessary or reasonable.  Accordingly, the Court will tax Item 16 in the amount of $3,605.40

 

Plaintiff objects to eight paragraphs in the declaration of Scott Meininger.  The Court OVERRULES the objections.

 

The Court orders defendants to give notice of this ruling.

 

 

5

30-2020-1172590

Malinis VS All Purpose Services,Inc.

Off Calendar

6

30-2021-1227801

McFadden VS Lingan

The Demurrer by Western National Securities to the 1st, 2nd, 3rd, 4th and 7th causes of action in the First Amended Complaint by plaintiff Eldonta McFadden is SUSTAINED with 20 days leave to amend.

 

The unopposed Motion to Strike by Western National Securities as to portions of plaintiff’s First Amended Complaint is GRANTED as to Item 3, DENIED without prejudice as to Items 4 and 5, and MOOT as to Items 1 and 2.

 

Plaintiff alleges he was a tenant in a property managed by Western National Securities.  Based on this alleged contractual relationship, plaintiff asserts that Western acted in contravention of his rights as a tenant by preventing him from entering the apartment.  Plaintiff alleges this gives rise to the causes of action for (1)Breach Of Contract, (2) Breach Of Covenant Of Good Faith And Fair Dealing, (3) Breach Of Covenant Of Quiet Enjoyment Of The Premises, (4) Intentional Infliction Of Emotional Distress and (7) Wrongful Eviction [ Civil Code §789.3]

However, the FAC states in conclusory fashion that plaintiff had a contract to rent the subject apartment and that defendant therefore wrongfully prevented him from going into the apartment.  Despite this claim being the core allegation central to the causes of action at issue in this Demurrer, the FAC fails to contain sufficient facts regarding the alleged contractual relationship such as whether it was oral or written, whether it was a subtenancy, the duration of contract, amount of rent, when it was entered into or which person made the contract on behalf of Western.  “[T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct.”  (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–459 [citing Code Civ. Proc., § 430.10, subd. (g).)  A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) An allegation of an oral agreement must “set[] forth the substance of its relative terms.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.)

Further, with regard to the IIED cause of action, plaintiff has failed to plead sufficient facts to state a cause of action.  The elements to a claim for Intentional Infliction of Emotional Distress are, “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)  These elements are not sufficiently pled.

 

Plaintiff does not oppose Western’s motion to strike the following 5 items of the FAC: 1. Paragraph 20 in its entirety [pertaining to IIED cause of action]; 2. Item 3 in the Fourth Cause of Action section under Prayer for Relief [pertaining to IIED cause of action]  3. Item 3 in the Fifth Cause of Action section under Prayer for Relief [pertaining to Negligent Infliction of Emotional Distress C/A]; 4. Any other references to punitive and/or exemplary damages;  5. Any other reference to despicable, oppressive, malicious, intentional, and/or willful conduct.

 

For Nos. 1 and 2, as a result of the ruling on the Demurrer, the Motion to Strike is moot.

 

No. 3 pertains to the Negligent Infliction of Emotional Distress cause of action.  The sole conclusory allegation is that plaintiff was locked out of the apartment.  Conclusory characterization of defendant’s conduct as intentional, willful, and fraudulent is a patently insufficient statement of “oppression, fraud, or malice” within the meaning of §3294. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  The facts alleged do not meet the standard for punitive damages and are, therefore, stricken.

 

The motion as to Nos. 4 and 5 does not comply with Rule 3.1322 which states “(a) Contents of notice:  A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” 

 

The moving party is ordered to give notice of this ruling.

 

 

7

30-2022-1265112

OC Metals, Inc. VS I Can BBW Korean BBQ, LLC

Before the Court is the Demurrer filed on 7/27/22 by Defendant Ample Construction & Building, Inc., which has since been identified by moving party as Haci Esat Karaaslan dba Ample Construction (hereinafter “Ample”), as to portions of the Complaint filed by Plaintiff OC Metals, Inc. (“Plaintiff”) on 6/15/22.

The Demurrer is directed to the First, Second and Forth Causes of Action (each a “COA”) in the Complaint. The Demurrer is SUSTAINED as to COAs 1 and 4, with 20 days leave to amend from the date of service of notice of this ruling, but is OVERRULED as to COA 2.

For COA 1, the claim as pled is for breach of contract. But a demurrer is proper where, in “an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (C.C.P. § 430.10(g).)  Here, COA 1 is identified in the caption as a claim for breach of written contract, but COA 1, as pled, does not then state whether the contract was oral, written, implied, or some combination thereof.  Nor does the Complaint identify the contract’s material terms. Instead, it states at ¶ 9 that the agreement was “on the terms and conditions agreed to by the parties from time to time.” It also presents what appears to be an inconsistency in the damages claimed, as only one invoice is attached, showing a balance due of $29,280, while the claim is for $40,279.16. The Demurrer as to COA 1 is therefore sustained, with leave to amend.

For COA 2, the Demurrer asserts that the claim duplicates that presented in COA 3. But alternative legal theories may be pled, and the elements of those two COAs are not identical. (See CACI 371 and 375.)  The Demurrer as to COA 2 is therefore overruled.

For COA 4, a book account may furnish the basis for an action on a common count when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the plaintiff, and is described as “open” when the debtor has made some payment on the account, leaving a balance due. (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) But here, Plaintiff has not alleged that it kept written or electronic records of debits and credits for the transaction(s) involved, or how such records correspond to the sum claimed. The Demurrer as to COA 4 is therefore sustained, with leave to amend.

Moving party is ordered to give notice of this ruling.

 

8

30-2021-1238236

Orion Bailey, LLC VS Ellis

Attorneys Jonathan Michaels/Matthew Van Fleet of MLG, APLC seek to be relieved as counsel of record for Plaintiff Orion Bailey, LLC.

Moving counsel have complied with the procedural requirements of C.R.C. 3.1362. On the merits, there is good cause to grant the relief requested.

Thus, the unopposed motion to be relieved as counsel is GRANTED. Moving counsel are to file a new proposed order reflecting the currently scheduled Mandatory Settlement Conference and Jury Trial dates.

The order granting relief is effective upon filing of a proof of service of the signed order on Plaintiff Orion Bailey, LLC.

Moving counsel are ordered to give notice.