DEPARTMENT C33 LAW AND MOTION

 Judge James L. Crandall

 

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 counsel wish to submit on the tentative ruling, please call the Court Clerk (657-622-5233) to notify the Court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling. If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the Court’s tentative ruling.

 

PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.

 

All appearances are now through Zoom

 

APPEARANCES:  Department C33 is currently participating in the Online Check-in/Zoom Pilot Program pursuant to Administrative Order No. 21/07 for non-evidentiary hearings, including law and motion.  All counsel and self-represented parties appearing for such hearings must check-in online through the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html prior to the commencement of their hearing.  No in-person appearances will be permitted without a further order of the court upon a showing of good cause.  Once the online check-in is completed, counsel and self-represented parties will be prompted to join the courtroom’s Zoom hearing session. Participants will initially be directed to a virtual waiting room while the clerk provides access to the video hearing. Check-in instructions and instructional video are available on the court’s website.

 

PUBLIC ACCESS:  In those instances where proceedings will be conducted only by remote video and/or audio, access will be provided to interested parties by contacting the courtroom clerk, preferably 24 hours in advance. No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.

 

You must provide your own remote court reporter (unless you have a fee waiver and request one in advance).

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: January 27, 2022 - 10:00 a.m. on ZOOM only

 

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Case Name

Tentative

1

Afamasaga vs. Truong

21-1217273

Demurrer to Complaint

OFF-CALENDAR

2

White vs. Banda

21-1178693

Demurrer to Cross-Complaint

The Demurrer of Plaintiffs and Cross-Defendants Jeffrey White and Lora White, individually and as trustees of The White Family Trust (“Cross-Defendants” or “Whites”), to the Cross-Complaint filed by Reynaldo Banda and Lupe Banda (“Cross-Complainants” or “Bandas”) is OVERRULED, in part, and SUSTAINED, in part, with 20-days leave to amend.

Cross-Defendants’ request judicial notice of Exhibit A is GRANTED.

First Cause of Action for Ejectment:

Cross-Defendants demur to the first cause of action on the grounds that it is barred by the 5-year statute of limitations.

A claim to recover real property is governed by the Code of Civil Procedure Sections 318 and 321.

Section 318 states: “No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.”

Section 321 states: “In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.”

The Cross-Complaint alleges that Cross-Complainants purchased the property located at 12041 Redhill Ave., Santa Ana, California (“Banda Property”) in August 2018 and thereafter notified Cross-Defendants of their plans to build a house on the Banda Property and a fence on the property line between the Banda Property and the adjoining Property owned by Cross-Defendants. (Cross-Complaint, ¶13.)

The Cross-Complaint further alleges that “Cross-Defendants requested, and Cross-Complainants consented, to hold off building the fence on the property line and to allow the Unauthorized Improvements to remain in place until Cross-Complainants started construction on their home.” (Cross-Complaint, ¶13.)

Accordingly, the Cross-Complaint alleges that the Unauthorized Improvements existed prior to August 2018 when Cross-Complainants purchased the Banda Property. However, the Cross-Complaint does not allege when the Unauthorized Improvements were first made. Based on paragraph 17 of the Cross-Complaint, Cross-Defendants contend that the Cross-Complaint implies that the Unauthorized Improvements “were in existence since at least 2014 when the Whites’ acquired their property and the use of the disputed area was contrary to the interests and to the exclusion of the Bandas or the prior owners of their property.” (Demurrer, 6:27-7:2.)

However, paragraph 17 alleges: “[A]t all times from and after planting, installation, construction, and maintenance of the Unauthorized Improvements, Cross-Defendants have been in possession of that portion of the Banda Property and now maintain and continue to use the Unauthorized Improvements, and withhold that portion of land, and the possession, use and quiet enjoyment of the portion of land, from Cross-Complainants without their permission or consent. . .” (Cross-Complaint, ¶ 17.)

Paragraph 17 does not support Cross-Defendants’ contention that the Cross-Complaint implies that the Unauthorized Improvements have existed since at least 2014 when the Cross-Defendants acquired their property. Cross-Defendants Request that the Court take Judicial Notice of the Recorded Grant Deed which shows that the Cross-Defendants have been in possession of their adjoining property since 2014. However, the Grant Deed also does not show that the Unauthorized Improvements have been in existence since 2014.

“ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ [Citation.]” (Geneva Towers Ltd. P'ship v. City of San Francisco (2003) 29 Cal. 4th 769, 781.)

Accordingly, the demurrer to the first cause of action is OVERRULED.

Second Cause of Action for Continuing Trespass and Third Cause of Action for Continuing Nuisance:

Cross-Defendants demur to the second cause of action for continuing trespass and third causes of action for continuing nuisance on the grounds that they are barred by the 3-year statute of limitations.

“An action for trespass upon or injury to real property” is subject to a 3-year statute of limitations. (Code Civ. Proc. § 338(b).) The same statute of limitations applies to a claim for private nuisance damaging real property. (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925.)

The key inquiry in determining when a trespass or nuisance action accrues, is whether the trespass complained of is “continuing” or “permanent.” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868.) If the nuisance is classified as “permanent,” the 3-year statute of limitations begins to run when the injury occurs, usually at the time the structure creating the nuisance is installed or constructed. (Id. at 869.) If the nuisance may be abated at any time, however, it is considered a “continuing” nuisance. (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103.) A nuisance is “abatable” if it “can be remedied at a reasonable cost by reasonable means.” (Id.)

The Cross-Complaint alleges that the “Unauthorized Improvements” made by Cross-Defendants consist of “planted shrubs, trees, and additional plantings, constructed, and installed an irrigation system and lighting, and maintained a decorative wall that encroaches approximately 6 feet onto the Banda Property.” (Cross-Complaint, ¶ 12.)

Both the second and third causes of action are based on the same Unauthorized Improvements. However, the Cross-Complaint does not allege that the Unauthorized Improvement are abatable and can be remedied at a reasonable cost by reasonable means. Accordingly, the Cross-Complaint does not allege sufficient facts to support continuing trespass or nuisance. Instead, the Cross-Complaint alleges a permanent nuisance and/or trespass subject to a 3-year statute of limitations.

Here, the Cross-Complaint was filed on April 16, 2021 and Cross-Complaint alleges that Cross-Complainants purchased the property in August 2018. The Cross-Complaint alleges that the Unauthorized Improvements were present when Cross-Complainants purchased the Banda Property but does not allege when the Unauthorized Improvements were made. Accordingly, the face of the Cross-Complaint does not show that a claim for permanent nuisance and/or trespass is time-barred.

As such, Cross-Defendants demurrer to the second and third causes of action on the grounds that they are barred by the Statute of Limitations is OVERRULED.

Fourth Cause of Action for Quiet Title:

Cross-Defendants demur to the fourth cause of action on the grounds that it is untimely

Cross-Complainants’ fourth cause of action to Quiet Title does not have a statutorily established statute of limitations. “The law is clear that the theory of relief underlying an action for quiet title. . . determines which statute of limitations applies.” (Ankoanda v. Walker-Smith (1996) 44 Cal. App. 4th 610, 615.)

Here, the quiet title action is subject to either the three-year statute of limitations applicable to the trespass and nuisance claims or the five-year statute of limitations applicable to the ejectment claim. For the reasons discussed with respect to the first, second and third causes of action, the quiet title claim is not untimely.

Accordingly, the demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action for Permanent Injunction:

Cross-Defendants demur to the fifth cause of action on the grounds that an injunction is a remedy, and not a cause of action.

“There are no separate causes of action for specific performance or injunctive relief, which are instead remedies. (See, e.g., Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2, 117 Cal.Rptr.3d 747 [specific performance and injunctive relief are equitable remedies and not causes of action for injuries]; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162, 64 Cal.Rptr.3d 488 [injunctive relief].)” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal. App. 4th 425, 433, fn. 8.)

Accordingly, the demurrer to the fifth cause of action is SUSTAINED with20-days leave to amend.

Future Hearing Dates:

8/1/22 – Jury Trial

7/1/22 – MSC

 

3

Franklin vs. The Irvine Company

20-1165035

Motion to Deem Facts Admitted

Defendant The Irvine Company dba The Parkland Apartments’ Unopposed Motion to Deem the Truth of Matters Specified in Requests for Admission, Set One is GRANTED.

Code of Civil Procedure section 2033.280 states,

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

Here, Defendant served Requests for Admissions, Set One to Plaintiff Jadda Franklin on 6/14/21.

Defendant’s counsel attempted to meet and confer after Plaintiff failed to provide timely responses, and Plaintiff’s counsel responded by requesting an extension to respond by 8/27/21.

However, as of 9/13/21, Defendant had not received responses from Plaintiff.

Therefore, the motion is granted.

The court awards a monetary sanction of $450 against Plaintiff. (Code Civ. Proc. § 2030.280(c).)

 

Future Hearing Dates:

3/17/22 – (2) Motion to Compel

11/14/22 – Jury Trial

10/14/22 – MSC

4

Madeline8, LLC cs. AlvaradoSmith, APC

20-1124146

Motion to Compel Deposition (Oral and Written)

The Motion to Compel Deposition of Madeline8, LLC’s Person Most Knowledgeable, filed by Defendants Alvarado Smith, APC; Ruben Smith; and Thomas Zeigler, is GRANTED.

Plaintiffs contend the motion is untimely because it was served in November 2021, after the discovery motion cutoff passed in September 2021.

On 9/9/21, the Court granted Defendants’ application to continue the trial date and denied their application to reopen discovery without prejudice. At the hearing, the parties informed the Court of the present dispute and the Court stated Defendants could file a motion to compel the PMK deposition if necessary. Therefore, the Court will consider the merits of the motion.

Code of Civil Procedure section 2025.230 provides,

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

Here, Defendants served a PMK deposition notice to Plaintiff Madeline8, LLC on 8/11/21 which identified 22 categories of testimony. The categories appear reasonably calculated to lead to discovery of admissible evidence related to Plaintiffs’ claims in the operative complaint.

Plaintiffs contend the managing member of Madeline8, LLC, Plaintiff Miaad Bushala, has already responded to discovery and appeared for a deposition in her personal capacity regarding the categories of information in the PMK notice. Ms. Bushala submits a declaration stating she has no additional information regarding the PMK categories. However, this does not relieve Plaintiff Madeline8, LLC from producing a PMK witness pursuant to Code of Civil Procedure section 2025.230.

Therefore, the motion is granted. (Code Civ. Proc. § 2025.450.) The parties shall meet and confer to select a date for the deposition within 30 days of service of notice of this order.

Future Hearing Dates:

7/18/22 – Jury Trial

5/20/22 – MSC

 

5

Adelhelm vs. Kia Motors America, Inc.

20-1162881

1.Motion to Compel Answers to Special Interrogatories

 

Defendant Kia America, Inc.’s (“Defendant”) Motion to Compel Plaintiff Ronnie Adelhelm’s (“Ronnie”) Further Responses to Special Interrogatories, Set One is GRANTED.

 

IT IS ORDERED THAT Ronnie provide complete, code-compliant, verified further responses, without reference to external documents, to Defendant’s Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105, within fourteen (14) days of notice of this ruling.

 

STANDARD OF LAW

 

Special interrogatory responses shall contain: (1) an answer containing the information sought to be discovered; (2) an exercise of the party's option to produce writings; and/or (3) an objection to the particular interrogatory. (CCP § 2030.210(a).) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (CCP § 2030.220(a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (CCP § 2030.220(c).)

 

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” (CCP § 2030.230.) “This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Id.) “The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.” (Id.)

 

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040; see also CCP § 2030.300(b)(1) [meet and confer statement required for motion to compel further response to special interrogatories].)

 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

 

Defendant claims that Ronnie’s responses fail to comply with CCP § 2030.220, requiring complete answers and requiring that each answer in response to an interrogatory be “as complete and straightforward as the information reasonably available to responding party permits.”

 

Defendant claims that nearly all the responses assert boilerplate objections (with Special Interrogatory Nos. 1, 6, 35, 37, 38, 41, 79, 80, 89, 92, 93 and 94 stating only objections), and reference Plaintiffs’ previous document productions, the Complaint, the Wallis class action and In re: Kia Engine Litigation class action, and certain NHTSA documents.

 

With respect to the stated objections, Defendant argues that none of the interrogatories seek privileged information or attorney work product, or expert witness information.

 

Defendant also contends that Ronnie’s reliance on CCP § 2030.230 and reference to Plaintiff’s prior document production, the Complaint and documents produced in two separate class action cases, is entirely improper, as the two required elements of CCP § 2030.230 (that responding to the interrogatory would require a compilation, abstract, audit or summary and the burden or expense of preparing or making it would be substantially the same for the propounding and respond party) are not present.

 

Defendant contends that these interrogatories seek information about Plaintiffs’ contentions, therefore a compilation is inadequate and a substantive response is required.

 

Further, Defendant notes that Plaintiffs reference documents from class actions and NHTSA investigations that have not been produced in this action, and therefore his responses are incomplete.

 

Further, “[i]t is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’” (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) “[I]f a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Id. at 784.) Thus, Defendant argues that Ronnie’s references to other documents fails to provide a complete answer to each interrogatory.

 

Defendant contends that complete responses to these Special Interrogatories are necessary as they concern Plaintiffs’ fraud claim, claimed damages and the defects in the subject vehicle. Specifically, they seek information, documents and witnesses regarding Plaintiffs’ contentions regarding the defects in the subject vehicle, when the defects were first experienced, the tolling of applicable statutes of limitation, Plaintiffs’ claimed damages, and the contentions that Defendant knowingly omitted or concealed facts from Plaintiff and that Plaintiffs’ damages resulted from such alleged concealment/omission.

 

Accordingly, Defendant seeks further responses to its Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105.

 

Defendant states that it attempted to meet and confer on the issue on March 11, 2020, and followed up on May 10 and 17, 2020, but that despite promises to provide supplemental responses on May 24, 2020, Ronnie failed to provide verified supplemental responses. (Hernandez Dec. ¶¶ 4-7.)

 

The Court finds that Defendant has satisfied the meet and confer requirement for bringing this Motion. (Obregon v. Superior Ct. (1998) 67 Cal. App. 4th 424, 432–33 [noting that with respect to meet and confer efforts, “the level of effort that is reasonable is different in different circumstances and may vary with the prospects for success”].)

 

Ronnie contends that Defendant’s Special Interrogatories concerning the nonconformities in the subject vehicle are either answerable with reference to Plaintiffs’ complaints

to Defendant’s repair facilities’ repair orders, or else are inappropriately directed to Ronnie, who is not an expert qualified to testify about the nature or root causes of nonconformities in their car.

 

Ronnie contends Defendant as the warrantor of the vehicle, has the majority of the responsive information about the nature, incidence, and causes of the subject vehicle’s nonconformities, but has purportedly withheld such information from Plaintiffs.

 

Ronnie also states Plaintiffs have produced copies of the purchase agreement and documents, repair orders, loan documents, title, and receipts and other documents, and provided explanations of damages, and further identification of nonconformities.

 

Upon review of Ronnie’s discovery responses, the Court finds that the responses are incomplete and not code compliant.

 

The responses primarily consist of a list of inapplicable boilerplate objections (which Ronnie fails to address in his Opposition) and/or reference external documents, including previous document productions, documents that may in the possession of third parties, and documents from other actions, without any substantive response or summary of those referenced documents.

 

Further, the responses are unverified.

 

While Ronnie contends that responsive information is already within Defendant’s possession, his responses must still be complete and comply with the Code of Civil Procedure.

 

Based on the foregoing, the Court GRANTS Defendant’s Motion to Compel Ronnie’s Further Responses to Special Interrogatories, Set One as to Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105.

 

Moving Defendant to give notice of this ruling.

 

2. Motion to Compel Further Responses to Special Interrogatories.

 

Defendant Kia America, Inc.’s (“Defendant”) Motion to Compel Plaintiff Melba Adelhelm’s (“Melba”) Further Responses to Special Interrogatories, Set One is GRANTED.

 

IT IS ORDERED THAT Melba provide complete, code-compliant, verified further responses, without reference to external documents, to Defendant’s Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105, within fourteen (14) days of notice of this ruling.

 

STANDARD OF LAW

 

Special interrogatory responses shall contain: (1) an answer containing the information sought to be discovered; (2) an exercise of the party's option to produce writings; and/or (3) an objection to the particular interrogatory. (CCP § 2030.210(a).) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (CCP § 2030.220(a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (CCP § 2030.220(c).)

 

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” (CCP § 2030.230.) “This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Id.) “The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.” (Id.)

 

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040; see also CCP § 2030.300(b)(1) [meet and confer statement required for motion to compel further response to special interrogatories].)

 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

 

Defendant claims that Melba’s responses fail to comply with CCP § 2030.220, requiring complete answers and requiring that each answer in response to an interrogatory be “as complete and straightforward as the information reasonably available to responding party permits.”

 

Defendant claims that nearly all the responses assert boilerplate objections (with Special Interrogatory Nos. 1, 6, 35, 37, 38, 41, 79, 80, 89, 92, 93 and 94 stating only objections), and reference Plaintiffs’ previous document productions, the Complaint, the Wallis class action and In re: Kia Engine Litigation class action, and certain NHTSA documents. With respect to the stated objections, Defendant argues that none of the interrogatories seek privileged information or attorney work product, or expert witness information.

 

Defendant also contends that Melba’s reliance on CCP § 2030.230 and reference to Plaintiff’s prior document production, the Complaint and documents produced in two separate class action cases, is entirely improper, as the two required elements of CCP § 2030.230 (that responding to the interrogatory would require a compilation, abstract, audit or summary and the burden or expense of preparing or making it would be substantially the same for the propounding and respond party) are not present. Defendant contends that these interrogatories seek information about Plaintiffs’ contentions, therefore a compilation is inadequate, and a substantive response is required.

 

Further, Defendant notes that Plaintiffs reference documents from class actions and NHTSA investigations that have not been produced in this action, and therefore her responses are incomplete.

 

Further, “[i]t is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’” (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) “[I]f a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Id. at 784.) Thus, Defendant argues that Melba’s references to other documents fails to provide a complete answer to each interrogatory.

 

Defendant contends that complete responses to these Special Interrogatories are necessary as they concern Plaintiffs’ fraud claim, claimed damages and the defects in the subject vehicle. Specifically, they seek information, documents and witnesses regarding Plaintiffs’ contentions regarding the defects in the subject vehicle, when the defects were first experienced, the tolling of applicable statutes of limitation, Plaintiffs’ claimed damages, and the contentions that Defendant knowingly omitted or concealed facts from Plaintiff and that Plaintiffs’ damages resulted from such alleged concealment/omission.

 

Accordingly, Defendant seeks further responses to its Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105.

 

Defendant states that it attempted to meet and confer on the issue on March 11, 2020, and followed up on May 10 and 17, 2020, but that despite promises to provide supplemental responses on May 24, 2020, Melba failed to provide verified supplemental responses. (Hernandez Dec. ¶¶ 4-7.)

 

The Court finds that Defendant has satisfied the meet and confer requirement for bringing this Motion. (Obregon v. Superior Ct. (1998) 67 Cal. App. 4th 424, 432–33 [noting that with respect to meet and confer efforts, “the level of effort that is reasonable is different in different circumstances and may vary with the prospects for success”].)

 

Melba contends that Defendant’s Special Interrogatories concerning the nonconformities in the subject vehicle are either answerable with reference to Plaintiffs’ complaints

to Defendant’s repair facilities’ repair orders, or else are inappropriately directed to Melba, who is not an expert qualified to testify about the nature or root causes of nonconformities in their car.

 

Melba contends Defendant as the warrantor of the vehicle, has the majority of the responsive information about the nature, incidence, and causes of the subject vehicle’s nonconformities, but has purportedly withheld such information from Plaintiffs. Melba states Plaintiffs have produced copies of the purchase agreement and documents, repair orders, loan documents, title, and receipts and other documents, and provided explanations of damages, and further identification of nonconformities.

 

The Court finds that the responses are incomplete and not code compliant.

 

The responses primarily consist of a list of inapplicable boilerplate objections (which Melba fails to address in her Opposition) and/or reference external documents, including previous document productions, documents that may in the possession of third parties, and documents from other actions, without any substantive response or summary of those referenced documents.

 

Further, the responses are unverified. While Melba contends that responsive information is already within Defendant’s possession, her responses must still be complete and comply with the Code of Civil Procedure.

 

Based on the foregoing, the Court GRANTS Defendant’s Motion to Compel Melba’s Further Responses to Special Interrogatories, Set One as to Special Interrogatory Nos. 6, 9-12, 14-31, 33-66, 68-78, 81-90, 92-93, and 95-105.

 

Moving Defendant to give notice of this ruling.

 

 

3. Motion to Compel Production

 

Defendant Kia America, Inc.’s (“Defendant”) Motion to Compel Plaintiff Ronnie Adelhelm’s (“Ronnie”) Further Responses to Request for Production, Set One is GRANTED IN PART.

 

IT IS ORDERED THAT Ronnie provide code-compliant, verified further responses to Defendant’s Requests for Production Nos. 1-2, 5-6, 8-10, 13, 16-23, 25-30, 32, 35 and 37-49, including identifying which documents being produced correspond with which Requests for Production, within fourteen (14) days of notice of this ruling.

 

STANDARD OF LAW

 

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) “Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).) “Unsworn [or unverified] responses are tantamount to no responses at all.” (Appleton v. Superior Ct (1998) 206 Cal. App. 3d 632, 636.)

 

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if . . . [a] statement of compliance with the demand is incomplete[,] . . . [a] representation of inability to comply is inadequate, incomplete, or evasive[,] [and/or] . . . [a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).)

 

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040; see also CCP § 2031.310(b)(2) [meet and confer statement required for motion to compel further response to requests for production].)

 

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION

 

Defendant propounded Requests for Production, Set One to Ronnie, seeking documents in support of Plaintiffs’ cause of action for fraud by omission.

 

Defendant contends that Ronnie’s unverified responses fail to comply with the requirements of CCP § 2031.220 requiring that a statement of compliance shall also state that the production will be allowed either in whole or in part, and asserts it has no indication as to whether Ronnie is withholding responsive documents based on an objection.

 

Defendant also claims that Ronnie has failed to produce responsive documents as promised in his responses and failed to adequately identify the specific request number to which the documents respond to as required by Code of Civil Procedure section 2031.280(a). Accordingly, Defendant seeks further responses to its Requests for Production Nos. 1-2, 5-6, 8-10, 13-14, 16-23, 25-30, 32, 35 and 37-49.

 

Defendant states that it attempted to meet and confer on the issue on March 11, 2020, and followed up on May 10 and 17, 2020, but that despite promises to provide supplemental responses on May 24, 2020, Ronnie failed to provide verified supplemental responses. (Hernandez Dec. ¶¶ 4-7.)

 

As a preliminary matter, the Court finds that Defendant has satisfied the meet and confer requirement for bringing this Motion. (Obregon v. Superior Ct. (1998) 67 Cal. App. 4th 424, 432–33 [noting that with respect to meet and confer efforts, “the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success”].)

 

Ronnie’s responses contain various objections and for the Requests for Production Nos. 1-2, 8-10, 16-23, 25-29, 35, and 37-49, he states that: “Responding party has conducted a diligent search and reasonable inquiry and will produce the documents currently in responding party’s possession, custody and control that are responsive to this demand and to which no objection is being made. Discovery and Plaintiff’s investigation are continuing. Accordingly, Plaintiff reserves their right to supplement and/or amend this response.” (Hernandez Dec., Ex. B.)

 

For Requests for Production Nos. 5-6, 13-14, 30, 32, Ronnie’s responses contain only objections.

 

Request for Production No. 14 seeks the fee agreement between Plaintiffs and their attorney. However, a fee agreement is protected by the attorney-client privilege. (Cal. Bus. & Prof. Code § 6149 [“A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code.”].) The Court sustains Plaintiffs’ objection and denies Defendant’s Motion to Compel a further response to this Request for Production.

 

As for the remaining requests for production, the Court finds that Ronnie’s responses are not code-compliant as they are unverified and there is no statement explaining whether Ronnie intends to comply in whole or in part. (CCP § 2031.220.)

 

Ronnie’s production must also satisfy the Code of Civil Procedure by identifying which Requests for Production corresponds with the documents being produced. (CCP § 2031.280(a).)

 

Further, it is unclear how the multiple objections apply to each Request for Production and Ronnie provides no explanation in opposition. While Ronnie contends that many of the relevant documents are already within Defendant’s possession, his responses must still comply with the Code of Civil Procedure.

 

Thus, the Court GRANTS IN PART Defendant’s Motion to Compel Ronnie’s Further Responses to Request for Production, Set One as to Requests for Production Nos. 1-2, 5-6, 8-10, 13, 16-23, 25-30, 32, 35 and 37-49.

 

Defendant to give notice.

 

4. Motion to Compel Production

 

Moving Defendant Kia America, Inc.’s (“Defendant”) Motion to Compel Plaintiff Melba Adelhelm’s (“Melba”) Further Responses to Request for Production, Set One is GRANTED IN PART.

 

IT IS ORDERED THAT Melba provide code-compliant, verified further responses to Defendant’s Requests for Production Nos. 1-2, 5-6, 8-10, 13, 16-23, 25-30, 32, 35 and 37-49, including identifying which documents being produced correspond with which Requests for Production, within fourteen (14) days of notice of this ruling.

 

STANDARD OF LAW

 

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) “Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).) “Unsworn [or unverified] responses are tantamount to no responses at all.” (Appleton v. Superior Ct (1998) 206 Cal. App. 3d 632, 636.)

 

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if . . . [a] statement of compliance with the demand is incomplete[,] . . . [a] representation of inability to comply is inadequate, incomplete, or evasive[,] [and/or] . . . [a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).)

 

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040; see also CCP § 2031.310(b)(2) [meet and confer statement required for motion to compel further response to requests for production].)

 

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION

 

Defendant propounded Requests for Production, Set One to Melba, seeking documents in support of Plaintiffs’ cause of action for fraud by omission.

 

Defendant contends that Melba’s unverified responses fail to comply with the requirements of CCP § 2031.220 requiring that a statement of compliance shall also state that the production will be allowed either in whole or in part, and asserts it has no indication as to whether Melba is withholding responsive documents based on an objection.

 

Defendant also claims that Melba has failed to produce responsive documents as promised in her responses and failed to adequately identify the specific request number to which the documents respond to as required by Code of Civil Procedure section 2031.280(a). Accordingly, Defendant seeks further responses to its Requests for Production Nos. 1-2, 5-6, 8-10, 13-14, 16-23, 25-30, 32, 35 and 37-49.

 

Defendant states that it attempted to meet and confer on the issue on March 11, 2020, and followed up on May 10 and 17, 2020, but that despite promises to provide supplemental responses on May 24, 2020, Melba failed to provide verified supplemental responses. (Hernandez Dec. ¶¶ 4-7.)

 

As a preliminary matter, the Court finds that Defendant has satisfied the meet and confer requirement for bringing this Motion. (Obregon v. Superior Ct. (1998) 67 Cal. App. 4th 424, 432–33 [noting that with respect to meet and confer efforts, “the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success”].)

 

Melba’s responses contain various objections and for the Requests for Production Nos. 1-2, 8-10, 16-23, 25-29, 35, and 37-49, she states that: “Responding party has conducted a diligent search and reasonable inquiry and will produce the documents currently in responding party’s possession, custody and control that are responsive to this demand and to which no objection is being made. Discovery and Plaintiff’s investigation are continuing. Accordingly, Plaintiff reserves their right to supplement and/or amend this response.” (Hernandez Dec., Ex. B.)

 

For Requests for Production Nos. 5-6, 13-14, 30, 32, Melba’s responses contain only objections.

 

Request for Production No. 14 seeks the fee agreement between Plaintiffs and their attorney. However, a fee agreement is protected by the attorney-client privilege. (Cal. Bus. & Prof. Code § 6149 [“A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code.”].) The Court sustains Plaintiffs’ objection and denies Defendant’s Motion to Compel a further response to this Request for Production.

 

As for the remaining requests for production, the Court finds that Melba’s responses are not code compliant as they are unverified and there is no statement explaining whether Melba intends to comply in whole or in part. (CCP § 2031.220.)

 

Melba’s production must also satisfy the Code of Civil Procedure by identifying which Requests for Production corresponds with the documents being produced. (CCP § 2031.280(a).)

 

Further, it is unclear how the multiple objections apply to each Request for Production and Melba provides no explanation in opposition. While Melba contends that many of the relevant documents are already within Defendant’s possession, her responses must still comply with the Code of Civil Procedure.

 

Thus, the Court GRANTS IN PART Defendant’s Motion to Compel Melba’s Further Responses to Request for Production, Set One as to Requests for Production Nos. 1-2, 5-6, 8-10, 13, 16-23, 25-30, 32, 35 and 37-49.

 

Moving Defendant to give notice of this ruling.

 

Future Hearing Dates:

2/10/22 – Demurrer / Mtn. to Strike

6/19/23 – Jury Trial

5/19/23 – MSC

 

6

Graham vs. Betor

20-1140480

Motion for Sanctions

Defendant and Cross-Complainant Mark Betor’s (“Betor”) Motion for Sanctions Pursuant to CCP § 128.7 is GRANTED IN PART. Plaintiff Anthony G. Graham’s Verified Complaint in this action is hereby STRICKEN without prejudice.

STANDARD OF LAW

“Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.” (CCP § 128.7(a).) “An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Id.)

By their signature, “an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[;] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[;] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[;] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (CCP § 128.7(b).)

“If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.” (CCP § 128.7(c).) “In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.” (Id.) “A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (CCP § 128.7(d).)

MOTION FOR SANCTIONS

Betor alleges that Plaintiff Anthony S. Graham (“Plaintiff”) filed a verified complaint and request for default in this action with multiple forged signatures of purported attorney of record, Michael J. Martin.

Mr. Martin is a former partner of Plaintiff’s, but their partnership ended in 2019.

Betor provides the Declaration of Michael J. Martin, who states: “I never signed this pleading or authorized anyone to sign it on my behalf. The signature which purports to be mine is a forgery. I never agreed to participate in the Graham v. Betor case; I do not know anything about it; and I have never performed any work on it.” (Martin Dec. ¶¶ 2-5, Exs. A-C.) He also states that the State Bar number listed on the verified complaint is not his State Bar number, but rather Plaintiff’s State Bar number. (Id. ¶ 3.) Mr. Martin further states that he has not spoken to Plaintiff since 2019, and this action was filed in May 2020. (Id. ¶¶ 2-5.)

Betor also provides images of Mr. Martin’s signature to the declaration in support of this Motion and on the complaint in Martin v. OC Management, OCSC Case No. 30-2019-01060948, and compares it with the image of Mr. Martin’s alleged signature on the verified complaint in this action, arguing that the signatures in this action are crude forgeries. (People v. Chapman (1957) 156 Cal. App. 2d 151, 159 [“The jury may properly compare handwritings to determine similarity or dissimilarity without the testimony of a handwriting expert.”].)

Based on this alleged conduct, Betor asks that the Court strike Plaintiff’s verified complaint with prejudice because it lacks the signature of the attorney of record, and requests that the Court order sanctions in the amount of $50,000.00 against Plaintiff. (CCP §§ 128.7(a), (c).)

Plaintiff contends that Mr. Martin’s declaration is not credible.

Plaintiff claims that in January 2019, he terminated Mr. Martin due to a serious ethical lapse and alcoholism issues, that he reported to the State Bar and to an affected client, and claims that Mr. Martin improperly took funds from a client trust account. (Graham Dec. ¶¶ 2, 6.)

However, Mr. Martin provides a supplemental declaration stating that he was never investigated by the State Bar for any alleged ethical violation, is in good standing with the State Bar, and that he left the partnership due to a dispute over his share of fees at the firm and provides his April 2019 Statement of Disassociation from the firm. (Supp. Martin Dec. ¶ 7, Ex. F.)

He also disputes the claim that he has alcohol issues. (Id. ¶ 8.)

Betor also challenges the credibility of Plaintiff’s claim that he retained Mr. Martin to assist in this matter in light of Plaintiff’s claims that Mr. Martin is an alcoholic who previously stole money from a client trust account.

Plaintiff then disputes Mr. Martin’s claim that Mr. Martin has not spoken to Plaintiff since the partnership dissolved in 2019. Plaintiff and his co-counsel in certain matters, Neal A. Roberts, claim that they engaged Mr. Martin in a test run in 2020 and ultimately retained Mr. Martin to assist them on matters in 2020. (Graham Dec. ¶¶ 4-9, Exs. A-C; Roberts Dec. ¶¶ 2-5, Exs. A-C.)

However, the alleged e-mail communications provided by Plaintiff do not show that Mr. Martin worked directly with or spoke with Plaintiff while he worked on matters with Mr. Roberts, and Mr. Martin denies doing so. (Id., Exs. A-C; Supp. Martin Dec. ¶ 9.)

Plaintiff also makes other allegations regarding Mr. Martin purportedly misrepresenting himself as part of the former firm, but Mr. Martin explains he only did so until the partnership dissolved in April 2019. (Id. ¶ 13.)

Here, Plaintiff concedes that Mr. Martin has not done any substantive work in this action. (Graham Dec. ¶ 6.)

Further, the signatures purportedly made by Mr. Martin on the filings in this action do not match Mr. Martin’s signature in filings in other actions or on his declarations in this action.

Also, Mr. Martin’s State Bar number is not listed on the verified complaint, but rather Plaintiff’s State Bar number. This leads the Court to conclude that the verified complaint in this action was not signed by the alleged attorney of record but was forged by plaintiff.

CCP Section 128.7 was enacted to protect the integrity of the legal system by discouraging sham actions. The foundation of our system of justice is undermined if lawyers are allowed to file knowingly false or forged pleadings.

Here the credible evidence shows that Mr.Graham was given an opportunity per CCP Section 128.7(c) to withdraw the forged pleading but stubbornly continued to perpetrate a fraud on the defendant and the court.

When Abraham Lincoln gave his oft quoted speech to the newly admitted members of the Illinois State Bar in 1860 he said”

“[R]esolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

That advice is as important today as it was 160 years ago.

Mr. Graham has violated the most basic tenant of the Code of Professional Conduct by lying to the court, opposing counsel and the defendant.

Accordingly, the Court must take decisive action to protect the integrity of our legally system and guarantee that lawyers do not file forged documents with the court.

The court GRANTS IN PART Betor’s Motion for Sanctions Pursuant to CCP § 128.7 and strikes the verified complaint without prejudice.

The Court declines to order the requested $50,000.00 sanction against Plaintiff but will instead issue sanctions of $2,500 which will require Plaintiff to file a notice with the State Bar.

The court will also comply with the Canon 3D (2) of the Canons of Judicial Ethics by reporting this case to the State Bar Court for review.

The court declines to strike the complaint with prejudice because that sanction exceeds what is necessary to deter Plaintiff and others from engaging in this misconduct.

Moving Defendant to give notice of this ruling.

Future Hearing Dates:

5/31/22 – Jury Trial

5/26/22 – Motion to Compel Production

4/29/22 – MSC

 

7

1st Reliant Financial Corporation vs. Zhang

21-1217232

Motion to Strike (Anti – SLAPP)

Defendants’ (Resmac, Inc., JJ Zhang and Kevin Heckemeyer) Motion to Strike (Anti-SLAPP) Plaintiffs’ (1st Reliant Financial Corporation, Checkered Flags, Inc. and Craig Chang) Complaint (Motion) is GRANTED.

The Reply was filed a day late. The court, in its discretion, may refuse to consider a late filed brief in ruling on the motion. (California Rule of Court, rule 3.1300(d).) However, the court will consider the late-filed papers in view of the law favoring a disposition of cases on the merits. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

The Court GRANTS Defendants’ Request for Judicial Notice in its entirety.

The Court OVERRULES Defendants’ objections to Nos. 1, 2, 3, 4, 5, 6, 7.

Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Code of Civil Procedure section 425.16, subdivision (e), states, “As used in this section, ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, [¶] (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or [¶] (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” “In determining whether to grant or deny a section 425.16 motion to strike, the court engages in a two-step process. [Citation.] First, the court must decide whether the defendant has met his or her threshold burden of showing that his or her acts arose from protected activity. [Citation.] . . . [¶] If the defendant meets his or her burden of showing that the activity is protected, then the court determines whether the plaintiff has carried his or her burden of showing that there is a probability that he or she will prevail on the claim. [Citations.]” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 811.)

Baral v. Schnitt (Baral) (2016) 1 Cal.5th 376, 385, addressed the following issue: “The question here arises at the second step of the analysis: What showing is required of a plaintiff with respect to a pleaded cause of action that includes allegations of both protected and unprotected activity?”

In answering this question, the Baral court explains, “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each 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. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Id., at p. 396.)

“Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. [Citations.] Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Id., at p. 394.)

Defendants seek to strike the entire Complaint. (Notice of Motion.)

Defendants contend that “[h]ere, it is undisputed that Plaintiffs’ current action arises from certain settlement negotiations in the SWANSEA ACTION and ZHANG ACTION. In particular, Plaintiffs allege the same in its Complaint. See, RJN, Ex. A, ¶¶9-11, 14, 20, 24, 28, 32, 36, and 40-41.” (Motion, 11:6-9.)

The Complaint states the following in the section entitled “ALLEGATIONS COMMON TO ALL CAUSES OF ACTION”:

This case arose from an informal settlement meeting between the Plaintiffs and Defendants seeking to resolve two cases then pending against one another. (USDC Case No. 2:19-cv-09319-GW-JPR and OCSC Case No. 30-2018-00983629) (Complaint ¶ 9.)

The informal meeting was held at counsel for Zhang on 1-25-20. Both parties owed each other money on borrowed funds. (Complaint ¶ 10.)

As consideration to resolve the matters, they agreed to allow Plaintiff access to their mortgage lines to enable Plaintiff to afford the monthly payments Without that access, he would not be able to afford the monthly payments. The federal court (Swansea) matter was tentatively settled at that meeting but was condition on Resmac and Heckenmeyer to provide the verified security for the loan to them and, making of Resmac loan lines available to Change and 1st Reliant/Checkered Flags. (Complaint ¶ 11.)

In reliance on the oral promises and agreements of the Defendants at the meeting, Plaintiff Change agreed to settle the state court (Zhang) case. (Complaint ¶ 12.)

Defendants claim that Code Civ. Proc.§ 425.16 (e)(1) and (2) are applicable.

Seltzer v. Barnes, (2010) 182 Cal. App. 4th 953, 962 (Seltzer) provides: “Appellant contend[ed] this case falls under section 425.16, subdivision (e)(2), which includes statements made in connection with civil court litigation. (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 4–5, 39 Cal.Rptr.3d 547.) Cases construing the subdivision hold that “a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266, 73 Cal.Rptr.3d 383, fn. omitted; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908, 120 Cal.Rptr.2d 576 [courts have adopted “a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16”].)

Seltzer further states: “Appellant cites a number of cases for the proposition that settlement negotiations are an exercise of the right to petition and statements made as part of such negotiations are in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2). Directly on point is GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 90 Cal.Rptr.3d 218 (GeneThera ). There, the plaintiffs alleged that a settlement offer made to another party in a prior action was improper because it was designed to create a conflict of interest for the plaintiffs' then counsel. (Id. at pp. 905–906, 90 Cal.Rptr.3d 218.) The plaintiffs sued, among others, the attorney who made the settlement offer, for intentional interference with contractual relations and negligence. (Id. at p. 906, 90 Cal.Rptr.3d 218.) The GeneThera court concluded that both causes of action were based on “communication of an offer to settle the ongoing lawsuit, a matter connected with issues under consideration or review by a judicial body.” (Id. at p. 908, 90 Cal.Rptr.3d 218, fn. omitted.) The court held that “[a]n attorney's communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike. [Citation.]” (Ibid.)

Here, as in GeneThera, respondent's claim is based on appellant's communication of an offer to settle and the content of the offer.7 ¶ Other cases have also held that settlement negotiations are within the scope of section 425.16.

In Navellier v. Sletten (2002) 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier ), the plaintiffs sued the defendant for fraud, alleging the defendant had misrepresented his intent to be bound by a release in a previous federal action. (Id. at p. 87, 124 Cal.Rptr.2d 530, 52 P.3d 703.) The California Supreme Court held the defendant's negotiation and execution of the release involved “‘statement[s] or writing[s] made in connection with an issue under consideration or review by a ... judicial body’ (§ 425.16, subd. (e)(2)), i.e., the federal district court.” (Id. at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

¶ In Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 841–842, 36 Cal.Rptr.3d 385, the plaintiff alleged the defendant made fraudulent promises in exchange for stipulation of judgment in an earlier unlawful detainer action. The Court of Appeal followed Navellier in holding that the case before it, “concerning allegedly fraudulent statements within the context of negotiating the stipulated judgment,” was within the scope of section 425.16. (Navarro, at p. 842, 36 Cal.Rptr.3d 385.)

Navarro also cited to Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418–1420, 103 Cal.Rptr.2d 174 (Dowling ), where the court held that a claim for misrepresentation, arising from the defendant's negotiation of a stipulated settlement of an unlawful detainer action, was within the scope of section 425.16, subdivision (e)(2). (See also Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118, 79 Cal.Rptr.3d 849 [entering into a settlement agreement is protected activity].)”

Suarez v. Trigg Lab'ys, Inc. (2016) 3 Cal. App. 5th 118, 123, provides: “Respondent asserts in its anti-SLAPP motion that all of appellant's claims in this action arose out of communications that occurred during the course of the settlement of Suarez I, the underlying action for quantum meruit, and thus constitute petitioning activity protected under section 425.16. Communications in the course of settlement negotiations are protected activity within the scope of section 425.16. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963, 106 Cal.Rptr.3d 290; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 907, 90 Cal.Rptr.3d 218.) The protection applies, even against allegations of fraudulent promises made during the settlement process. (Navellier, supra, 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 842, 36 Cal.Rptr.3d 385.)”

Based on the foregoing, Defendant met their burden of showing that settlement communications, which are the primary basis of the claims are protected communications under Code Civ. Proc. § 425.16(e)(2).

Roberts v. Los Angeles Cty. Bar Assn., (2003) 105 Cal. App. 4th 604, 613–14 states: “In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence. [Citations].”

As an initial matter, 1st Reliant Financial Corporation cannot participate in this action because they are not current with their corporate status. (Westmoreland Decl. ¶ 6, Ex. C.)

The Court of Appeal in Cadle Co. v. World Wide Hosp. Furniture, Inc., (2006) 144 Cal. App. 4th 504, 512–13 stated the following regarding a party who temporarily loses corporate status: “A claim of lack of corporate capacity to prosecute or defend a civil action because of its suspended status “ ‘is a plea in abatement which is not favored in law.’ ” (Traub Co. v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370, 57 Cal.Rptr. 846, 425 P.2d 790.)

The primary purpose of statutes depriving suspended corporations of privileges enjoyed by a going concern, including the capacity to sue or defend litigation, is to motivate delinquent corporations to pay back taxes or file missing statements. (See id. at p. 370, 57 Cal.Rptr. 846, 425 P.2d 790; Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369, 371, 105 Cal.Rptr. 29, 503 P.2d 285 (Peacock Hill ); Palm Valley Homeowners Assn., Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 561, 102 Cal.Rptr.2d 350.)

The suspension statutes are not intended to be punitive. Once the statutory goals underlying suspension are met, no purpose is served by imposing additional penalties. (Peacock Hill, supra, 8 Cal.3d at p. 371, 105 Cal.Rptr. 29, 503 P.2d 285; Gar–Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal.App.3d 242, 244, 116 Cal.Rptr. 389.)

Leniency permits a delinquent corporation to secure a revivor, even at the time of the hearing, at the request of the corporation or on the trial court's own motion. (A.E. Cook Co. v. K S Racing Enterprises, Inc. (1969) 274 Cal.App.2d 499, 500, 79 Cal.Rptr. 123; Peacock Hill, supra, 8 Cal.3d at p. 372, fn. 2, 105 Cal.Rptr. 29, 503 P.2d 285, citing Schwartz v. Magyar House, Inc. (1959) 168 Cal.App.2d 182, 335 P.2d 487.) When a corporation's suspended status “comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable the suspended corporation to effect reinstatement ... to defend itself in court. [Citation.]” (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th1361, 1366, 64 Cal.Rptr.2d 4.)”

Plaintiff does not provide any evidence to the contrary and only states in the Motion that the tax payment is in the process of being paid and the corporate status is going to be remedied shortly. On this basis, Plaintiff 1st Reliant Financial Corporation cannot show its probability of being able to pursue its claims. This is one ground on which the Motion is granted.

Defendants also claim that Checkered Flags, Inc. was involuntarily dissolved in Montana. (Westmoreland Decl. ¶ 7, Ex. D.) Plaintiff contends that Checkered Flags, Inc. is an active corporation in California. Plaintiff attaches Ex. A that supports this but does not authenticate it. Evidence excludable only because it lacks a proper foundation may be used if there is a high probability that plaintiff could establish a proper foundation at trial. (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1148.) Here, there is a high probability that Plaintiff could lay the foundation for its corporate status at trial. Thus, the Court does not grant the motion on this ground.

1st cause of action to Set Aside Judgment

In the cause of action to “Set Aside of Judgment” Plaintiffs’ Complaint asks the Court to set aside the judgment in Zhang claiming it was premature, and without validity, because performance of the settlement terms of the settlement agreement of the federal action were a precondition. (Complaint ¶ 16.)

In support of this cause of action in their Opposition, Plaintiffs quote Kachig v. Boothe, (1971) 22 Cal. App. 3d 626, 632: “A direct attack on an otherwise final, valid judgment by way of an independent action to set it aside (Bennett v. Hibernia Bank, 47 Cal.2d 540, 558, 305 P.2d 20; see Rest. Judgments, s 11, com. a and s 12, com. f; 5 Witkin, Cal. Procedure (2d ed.), pp. 3584, 3586, 3745) is permitted where it appears that the complaining party was fraudulently prevented from presenting his claim or defense in the prior action. (United States v. Throckmorton, 98 U.S. 61, 65—66, 25 L.Ed. 93, 95; Kulchar v. Kulchar, 1 Cal.3d 467, 471, 82 Cal.Rptr. 489, 462 P.2d 17; Jorgensen v. Jorgensen, 32 Cal.2d 13, 18, 193 P.2d 728; Pico v. Cohn, 91 Cal. 129, 133—134, 25 P. 970; Rest. Judgments, ss 118, et seq; 5 Witkin, Cal. Procedure (2d ed.), pp. 3752, et seq.)”

Plaintiffs do not provide any evidence to support that they were fraudulently prevented from presenting their claims or defense in the prior action. To the contrary, Defendants provide the Court’s tentative ruling that became the order for the Motion to Reconsideration of the Motion to Enforce Settlement. (RJN, Ex. H.) In that ruling, the Court held that any argument that Defendants (Plaintiffs in this action) were fraudulently induced to enter into the contract could have been presented in Opposition to the Motion to Enforce Settlement. “If Plaintiff was not returning his calls or moving forward with the alleged promise to process loans for Defendants, based on their own evidence, Defendants were aware of this information prior to October 10, 2020—when this Motion was initially heard.” (RJN, Ex. H.)

Accordingly, Plaintiffs cannot show a probability of prevailing on the merits of this claim.

Litigation privilege bars the 2nd, 3rd, 4th, 5th, 6th and 7th causes of action.

The litigation privilege protects attorneys, judges, jurors, witnesses, and other court personnel from tort liability for any “publication or broadcast” made “[i]n any ... judicial proceeding....” Code Civ. § 47(b).

Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 (Kashian) provides: “Civil Code section 47, subdivision (b) defines what is commonly known as the “litigation privilege.” ¶ “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365.)

¶ The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302, 100 Cal.Rptr.2d 437.) Put another way, application of the privilege does not depend on the publisher's “motives, morals, ethics or intent.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 220, 266 Cal.Rptr. 638, 786 P.2d 365.)

Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having “some relation” to a judicial proceeding, and to all torts other than malicious prosecution. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193–1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29, 61 Cal.Rptr.2d 518.)

Moreover, “[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.] [¶] ... [¶] [The] absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on ‘[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.’ [Citation.]” (Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th at p. 1303, 100 Cal.Rptr.2d 437 [holding privilege applies to husband's report to DMV regarding wife's drug use and its possible impact on her ability to drive].) ¶ If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1139–1140, 57 Cal.Rptr.2d 284.) Any doubt about whether the privilege applies is resolved in favor of applying it. (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529, 3 Cal.Rptr.2d 49.)”

Kashian further provides: “[C]ommunications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal. This is assuming, of course, that the communications are “logically related” to the litigation.” (Id. at 598.)”

Here, Plaintiffs’ allegations regarding the settlement agreements and claims based on them are barred by the privilege. (Navarro v. IHOP Properties, Inc. (2005) 134 Cal. App. 4th 834, 844 (“The case law supports IHOP's contention that statements made during settlement negotiations, such as those at issue here, are protected by the litigation privilege.”))

Regarding the 2nd Cause of action for “Breach of Oral Agreement” claim, Plaintiff cites Feldman v. 1100 Park Lane Assocs., (2008) 160 Cal. App. 4th 1467, 1486 (Feldman), for the premise that “[t]he litigation privilege “is generally described as one that precludes liability in tort, not liability for breach of contract. [Citations.]” but Plaintiff disregards the further analysis put forth in Feldman as to whether the litigation privilege applies to a breach of contract claim.

Plaintiffs fail to show that the claim is not barred by the litigation privilege. Accordingly, Plaintiffs do not meet their burden of establishing a probability of prevailing on the merits of this claim because they because they cannot show the claim is legally sufficient.

Assuming arguendo that Plaintiffs did bring the Court through the remainder of the analysis, they would still not be able to show a probability of prevailing on the claim. “[W]hether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege. [Citations.]” (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492, 25 Cal.Rptr.3d 109 (Wentland ).)

Feldman found: “The same communicative conduct formed the basis for the tort and breach of contract causes of action, except for the negligent misrepresentation cause of action. Nor can we say, as did the Wentland court, that application of the privilege to allow this breach of contract claim would invite further litigation. Clearly, the contrary is true. In these circumstances, application of the privilege furthers the policy of allowing access to the courts without fear of harassing derivative actions. The litigation privilege applies to bar this breach of contract claim.”

Here, the breach of contract claims and tort actions are also brought on the same grounds and the breach of contract claim is barred by the litigation privilege.

Further, Plaintiffs do not provide any valid arguments as to why the 3rd Cause of Action for Fraudulent Inducement, 4th Cause of Action for Specific Performance, 5th Cause of Action for Promissory Fraud, 6th Cause of Action for Promissory Estoppel, and 7th Cause of Action for Tortious Breach of Good Faith and Fair Dealing, are not barred by the litigation privilege. These cause of action are supported by the same privileged settlement negotiations and therefore are barred.

In addition to the litigation privilege, Plaintiffs Complaint would also fail because they do not establish a prima facie case. Plaintiffs fail to provide any evidence of damages, which is a required element of the foregoing claims, excluding Specific Performance. Plaintiffs do not provide evidence to support Specific Performance.

Regarding fees, Code Civ. Proc. § 425.16(c)(1) provides: “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”

Defendants request that they be allowed to bring a properly noticed motion for their fees and costs.

Accordingly, the Court GRANTs the request for fees with the amount to be determined by a properly a properly noticed motion.

Based on the foregoing, the court GRANTS Defendants’ (Resmac, Inc., JJ Zhang and Kevin Heckemeyer) Motion.

Defendants to give notice.

Future Hearing Dates:

2/16/22 – CMC

 

8

Wells Fargo Bank, N.A. vs. Lukins

21-1179365

1.Motion for Summary Judgment

Plaintiff Wells Fargo Bank, N.A.’s motion for summary judgment in its favor and against defendant Amalia Lukins is CONTINUED to February 17, 2022.

Exhibits to Declaration of Hanna Kerfan:

The declaration of Hanna Kerfan states that Exhibits 1 and 2 are attached, however, no exhibits were attached to the declaration of Hanna Kerfan that was filed with the Court.

Plaintiff is ORDERED to file the Exhibits to the Declaration within 7 days of this order.

Procedural Issue:

Defendant has not submitted a Separate Statement in Opposition to Plaintiff’s Motion for Summary Judgment.

Code of Civil Procedure section 437c, subdivision (b)(3) states: “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.”

California Rules of Court, rule 3.1350, subdivision (e) states: “Except as provided in Code of Civil Procedure section 437c(r) and rule 3.1351, the opposition to a motion must consist of the following separate documents, titled as shown: . . . (2) “[Opposing party’s] separate statement in opposition to [moving party’s] motion for summary judgment or summary adjudication or both . . .”

Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210 (Parkview Villas), states, “The requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed. [Citation.]”

“And we do not question the right of a trial court to refuse to proceed with a summary judgment motion in the absence of an adequate separate statement from the opposing party. (See Security Pacific Nat. Bank. v. Bradley, supra, 4 Cal.App.4th at p. 93, 5 Cal.Rptr.2d 220.) But the proper response in most instances, if the trial court is not prepared to address the merits of the motion in light of the deficient separate statement, is to give the opposing party an opportunity to file a proper separate statement rather than entering judgment against that party based on its procedural error. [Citations.]” (United Community Church, supra, 231 Cal.App.3d at p. 335, 282 Cal.Rptr. 368 [‘The failure to file a responsive separate statement usually results in a continuance of the motion to permit the filing of proper papers and an award of fees and costs as a condition of the continuance for purposes of complying with the statute.’]; see Security Pacific Nat. Bank, at pp. 94–95, 5 Cal.Rptr.2d 220 [complexity of case explains why court did not decide summary judgment motion on the merits without a separate statement but does not explain why it was a sound exercise of discretion not to afford the opposing party an opportunity to supply one].)” (Id., at p. 1211.)

Since Defendant has failed to file a Separate Statement in Opposition, the Court is inclined to continue the hearing to allow Defendant an opportunity to file a Separate Statement in Opposition.

Continuance to conduct discovery:

Defendant argues that the Motion “is premature, as discovery has yet to close.” (Opp. 2:11-12.) Based on this argument, defendant asks the court to deny the Motion, but it is unclear whether Defendant is also seeking a continuance to conduct further discovery.

Code of Civil Procedure section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

“A declaration in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’” (Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 254.)

Defendant has not filed any declaration in support of the request for a continuance. Accordingly, if Defendant is seeking a continuance to conduct discovery, the Court requires defendant to file a code compliant declaration 10 days prior to the continued hearing.

Plaintiff to give notice.

2. Case Management Conference

Continued to 2/17/22

Future Hearing Dates:

No future hearing dates

 

9

Pahissa-Vasquez vs. County of Orange

20-1167350

Motion for Summary Judgment

Defendant City of San Clemente’s unopposed Motion for Summary Judgment is GRANTED.

Defendant’s request for judicial notice is granted. (Evid. Code § 452.)

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, holds:

“[I]in moving for summary judgment, a “defendant ... has met” his “burden of showing that a cause of action has no merit if” he “has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials” of his “pleadings to show that a triable issue of material fact exists but, instead,” must “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (o)(2).)”

Defendant is not Liable for Condition of Property it did not Own or Control

The allegations of the complaint delimit the scope of the issues on a motion for summary judgment/adjudication. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)

On 4/29/21, the City’s demurrer to Plaintiff’s third and fourth causes of action for premises liability and negligence was sustained without leave to amend.

Plaintiff’s remaining causes of action are for (1) dangerous condition of public property and (2) vicarious liability for wrongful acts or omissions by a public entity arising from a trip and fall incident in September 2020.

Government Code section 835 sets out the elements of Plaintiff’s first cause of action for dangerous condition of property:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Tolan v. State of California ex rel. Dept. of Transportation (1979) 100 Cal.App.3d 980, 984, holds:

“We conclude that in providing in Government Code section 835 that a public entity is liable for injury caused by a dangerous condition of ‘its property,’ the Legislature meant the public entity having ownership or control of the property at the time of the injury.”

Here, the City has presented evidence that the trip and fall incident did not occur on property owned or controlled by the City. Plaintiff’s responses to written discovery state the injury occurred at San Clemente State Beach, located at 225 W. Calafia Avenue in San Clemente. (UMF 13.)

The City presents undisputed evidence that the subject location is owned and controlled by the State of California, not the City. (UMF 4-7, 14-18.)

Plaintiff’s second cause of action is based on alleged negligence of City employees in relation to the trip and fall incident. However, the City has shown its employees did not have a duty to maintain the premises in a safe condition because the City did not own or control the property. There is no evidence that any act or omission of a City employee caused Plaintiff’s injury.

The City has met its burden of showing there is no triable issue of material fact as to either of Plaintiff’s causes of action because the City did not own or control the subject property.

Plaintiff has not opposed the motion.

Therefore, the Motion for Summary Judgment is GRANTED.

Defendant is Entitled to Defense Costs Under CCP Section 1038

The City seeks to recover its defense costs under Code of Civil Procedure section 1038, which provides, in part:

“(a) In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint or answer in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party's papers and an opportunity to be heard.

(b) “Defense costs,” as used in this section, shall include reasonable attorney's fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.”

Here, Plaintiff’s causes of action against the City are under the Government Claims Act. The City has shown that, before Plaintiff filed the complaint, the City informed Plaintiff’s counsel the City did not own or control the subject property and provided evidence to Plaintiff’s counsel demonstrating the City’s lack of ownership or control of the subject property. (UMF 1-11.)

After the lawsuit was initiated, the City’s counsel again asked Plaintiff’s counsel to dismiss the City on this basis. However, Plaintiff’s counsel failed to do so.

The complaint was filed in October 2020 and Plaintiff has had the opportunity to conduct discovery as to whether the City owned or controlled the subject property. However, Plaintiff has not presented any evidence of a good-faith basis to pursue a premises liability claim against the City. Rather, Plaintiff has acknowledged in discovery responses that the incident occurred at San Clemente State Beach, which the City has shown is not owned or controlled by the City.

Therefore, the Court finds Plaintiff did not bring this proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the available facts and law which warranted the filing of the complaint.

The City shall file a noticed motion for determination of reasonable defense costs under Code of Civil Procedure section 1038.

Future Hearing Dates:

12/12/22 – Jury Trial

11/18/22 – MSC

 

10

Lopez vs. Steve Gordon, as Director, California Department of Motor Vehicles

21-1213854

Petition for Writ

Petitioner Joshua Robert Lopez’s Writ of Mandate directing the Director of the Department of Motor Vehicles (“DMV”) to set aside and revoke its July 14, 2021, suspending Petitioner’s driving privilege effective July 28, 2021, through July 27, 2022 is DENIED.

Standard of Review:

“In ruling on a petition for writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision.” (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568 (Hildebrand).)

“If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (Veh. Code § 13559 (a).)

Background:             

On February 01, 2021, at approximately 1855 hours, Officer Schneider while on uniform patrol for the City of Huntington Beach stopped Petitioner as Petitioner was driving in the area of the Westminster Mall. (AR 16)

After stopping Petitioner, Officer Schneider conducted a standardized field sobriety exam on Petitioner and subsequently arrested Petitioner for DUI. (AR 16)

Petitioner was handcuffed and placed in the back seat of Officer Schneider’s patrol vehicle. (AR 16) While in the back seat, Officer Schneider asked Petitioner “if he would provide a breath or blood sample. [Petitioner] verbally refused and stated he wanted to speak to his attorney. I informed [Petitioner] he could not speak to his attorney until he submitted to a chemical test. [Petitioner] continued to state he wanted to speak to his attorney and refused to tell me which test he would take.” (AR 16.)

Petitioner was then transported to the HBPD jail where Officer Schneider read the chemical test admonition. (AR 17.) Officer Schneider further states in the Incident/Investigation Report that: “While reading the chemical test admonition to [Petitioner], he continued to talk over me. When asked a question [Petitioner] at no time would provide a direct answer. [Petitioner] refused the breath test and said, ‘I want a phone call’ and never provided a direct answer regarding the breath test. [Petitioner] also refused to take a blood test.” (AR 17.)

On February 01, 2021, Officer Schneider also completed an Age 21 and Older Officer’s Statement (DS367). (AR 7-9)

On the Chemical Test Admonition page of the DS367, Officer Schneider indicated that he read the Admonition to Petitioner on February 01, 2021, at 2025 hours. (AR 8.)

In response to the question, “Will you take a Breath Test?” Officer Schneider wrote, “Refused ‘I want a phone call.’” (AR 8.)

In response to the question, “Will you take a Blood Test?” Officer Schneider wrote “Refused.” (AR 8.)

Administrative Hearing:

An administrative hearing was held before DMV Hearing Officer Rentiquiano. (AR 27).

On July 14, 2021, DMV Hearing Officer Rentiquiano issued his Decision suspending Petitioner’s driver license effective July 28, 2021, through July 27, 2022, for refusing a chemical test after being arrested for DUI. (AR 2-4)

Analysis:

Petitioner contends that his refusal of a breath or blood test is legally excused because Officer Schneider did not clarify Petitioner’s confusion with respect to Petitioner’s request to speak to an attorney. (Opening Br., 7:19-20.)

Vehicle Code section 23612, subdivision (a)(1)(A) provides in part: “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140 [under the age of 21, 0.05 percent alcohol or more], 23152 [driving under influence], or 23153 [driving under the influence and causing bodily injury to another person].”

Vehicle Code section 23612(a)(1)(D) provides that the person arrested for driving under the influence “shall be told that his or her failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153. The person shall also be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in . . . the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year. . .”

“The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.” (Veh. Code § 23612(a)(4).)

“If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612” the department shall “(1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.” (Veh. Code § 13353(a)(1).)

Petitioner contends that he cannot be deemed to have refused a breath or blood test because his refusal was based on officer-induced confusion regarding Miranda warnings and test admonishments.

Petitioner relies on Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545 (Rust) to argue that because his confusion about whether he was entitled to an attorney was induced by having received a Miranda warning, the arresting officer had a duty to elaborate upon the warning by telling Petitioner that the right to an attorney is not applicable to the blood alcohol test. (Id. at p. 547.)

In Rust, the officer read Miranda warnings to the driver, said the driver “had a right, beginning at that moment, to an attorney,” and arrested him and placed him in the patrol car. While traveling to the station, the officer requested the driver to submit to a blood alcohol test of his blood, breath or urine, but the driver refused until he called his attorney. (Id. at 546.) The court in Rust stated that: “When it became evident Rust thought he was entitled to an attorney and might have misconceived the warning, the officer should have elaborated by stating it was inapplicable to the blood alcohol test.” (Id. at 547.)

Unlike Rust, here, there is no evidence of any officer actions, including contradictory statements regarding right to an attorney which would mistakenly have led Petitioner to believe that he had a right to talk to an attorney before completing the test.

There is also no evidence in the record to show that Petitioner was confused about being entitled to an attorney before submitting to a test.

The evidence shows that after Petitioner was arrested and while seated in the back seat of the patrol vehicle, Officer Schneider asked Petitioner if he would provide a breath or blood sample and Petitioner verbally refused and stated he wanted to speak to his attorney. (AR 16.)

At that time, Officer Schneider informed Petitioner “he could not speak to his attorney until he submitted to a chemical test.” (AR 16.)

However, Petitioner continued to state he wanted to speak to his attorney and refused to tell Officer Schneider which test he would take. (AR 16.)

After Petitioner was transported to the Huntington Beach Police Department jail, Officer Schneider read the chemical test admonition to Petitioner. (AR 17.) While Officer Schneider was reading the chemical test admonition to Petitioner, Petitioner continued to talk over Officer Schneider. (AR 17.)

Although Petitioner was uncooperative during the reading to the admonition, there is no evidence in the record to show that Petitioner was confused by the admonition.

Petitioner also relies on Hoberman-Kelly v. Valverde (2013) 213 Cal. App. 4th 626, 630-31 (Hoberman-Kelly). In Hoberman-Kelly, a driver was arrested for DUI and, seeing a sign at the police station advising her of her right to a phone call, insisted on calling her attorney. (Id. at 629.) The officer “at no point acknowledged her request to make a call, responded to her question why she could not do so as the sign indicated, or made any effort to explain that despite her right to speak to an attorney she was not entitled to do so or to make her call before submitting to the test.” (Ibid.)

The Hoberman-Kelly court stated “it was unmistakably apparent that she was confused by the Miranda warning she had received coupled with the sign on the wall advising that she had a right to make a telephone call. While [the officer] did read the sentence in the form admonition that she had no right to an attorney before deciding whether to take the test or during the test, he did so in what the trial court aptly described as a ‘mechanical’ reading, and what might also be described as purely perfunctory. It is clear from the video that [the officer] made no genuine effort to communicate to Hoberman-Kelly ‘that the constitutional rights previously explained to [her] are not applicable to the decision [she] must make.’ Although Hoberman-Kelly repeatedly asked [the officer] why she could not make a phone call as the sign indicated she could, Perry made no effort to answer her or to explain that she was not entitled to make the call until after she took the blood test.” (Id. at 633.) Notwithstanding the evidence above, the court commented, “[i]t is questionable whether officer-induced confusion would provide a defense here if Hoberman-Kelly had refused to take a blood test.” (Id. at p. 632.) This was immaterial, however, because the court found substantial evidence supported the trial court's conclusion that the driver never actually refused to submit to a blood test. (Id. at 633.) The court concluded that the officer both failed to make a reasonable effort to dispel Hoberman-Kelly’s confusion and ignored her repeated statements that she would submit to a blood test. (Id. at 633.)

Hoberman-Kelly is distinguishable because unlike the petitioner in Hoberman-Kelly, in this case, Petitioner never told Officer Schneider that he would submit to the test. Further, there is no evidence that Petitioner ever asked why he could not talk to an attorney before he submitted to a blood test and never expressed confusion about the admonition.

The weight of the evidence supports DMV’s finding that Petitioner refused to take a chemical test after being properly admonished that his driving privilege would be suspended if he refused or failed to complete the required chemical test.

Accordingly, the Writ of Mandate is DENIED.

Future Hearing Dates:

No future hearing dates

 

11

Hartung vs. JMR Capital Partners, Inc.

19-1079117

1.   Order to Show Cause re: Contempt

2.   Order to Show Cause re: Contempt

 

Future Hearing Dates:

No future hearing dates