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: June 30, 2022 - 10:00 a.m. on ZOOM only

 

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Case Name

Tentative

1

Sanchez vs. Pretium Packaging, LLC

22-1240952

Motion to Appear Pro Hac Vice

The application of attorney Yiying “Courtney” Chen to appear in this matter pro hac vice as counsel for Defendants Pretium Packaging, L.L.C., Steve Hernandez, and Enrique Rico is hereby GRANTED pursuant to California Rules of Court, Rule 9.40.

Moving attorney has complied with the requirements of California Rules of Court, Rule 9.40.

Moving attorney to give notice.

Future hearing dates

7/28/23 – MSC

8/28/23 – Jury Trial

 

2

Hendel vs. Internet Escrow Services, Inc.

21-1200140

Motion to Appear Pro Hac Vice

The Application of David M. Robbins to Appear Pro Hac Vice for plaintiff Kenneth Hendel is DENIED without prejudice.

On May 12, 2022, the court continued the hearing to allow moving attorney to demonstrate that: (1) the application and the notice of hearing were served on the State Bar of California in compliance with California Rule of Court, Rule 9.40, subsection (c)(1); and (2) the $50 fee as required by Rule 9.40, subdivision (e) was paid to the State Bar of California. (ROA 116.)

The order states that “Moving attorney may file evidence showing compliance with Rule 9.40, subdivisions (c)(1) and (e) no later than 5 court days before the continued hearing.”

Moving attorney has not filed any evidence showing compliance with Rule 9.40, subdivisions (c)(1) and (e); therefore, the Application is DENIED without prejudice.

Moving attorney to give notice.

Future hearing dates

8/18/22 – Motion for Judgment on the Pleadings

1/13/23 – MSC

2/6/23 – Jury Trial

 

3

Weaver vs. American Golf Corporation

21-1235367

Demurrer to Complaint

Defendant City of Fullerton’s (“City”) demurrer to the Complaint filed by Plaintiff Jeanne Weaver is SUSTAINED with 20-days leave to amend.

City’s demurrer is made pursuant to Code of Civil Procedure Section 430.10, subdivision (e).

First Cause of Action for Unfair Competition:

The City contends that Plaintiff’s first cause of action for Unfair Competition under Business & Professions Code sections 17200, et seq. is not viable against a public entity.

The Unfair Competition Law (“UCL”) authorizes the court to enjoin “[a]ny person who engages, has engaged, or proposes to engage in unfair competition . . .” (Bus. & Prof. Code § 17203.) The UCL includes within its provisions its own unique definition of “person”: “As used in this chapter, the term person shall mean and include natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.” (Bus. & Prof. Code § 17201.)

A public entity is not included in the definition of a “person.” In People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd., (2005) 125 Cal.App.4th 871, 878-879) the court stated:

“In all of these cases, the courts noted that the definition of the term ‘person’ in the operative statutes did not include public entities, and concluded that the UCL did not otherwise evidence any intent to impose governmental liability. We agree. ‘Statutory interpretation begins with the text and will end there if a plain reading renders a plain meaning: a meaning without ambiguity, uncertainty, contradiction, or absurdity.’ [Citation.] Section 17201 does not include any references to governmental agencies or political entities. Thus, only through an unreasonable, strained construction can the CMAB, an administrative adjunct to a governmental body, be deemed encompassed by the statutory definition of ‘person’ as included within ‘natural persons, corporations, firms, partnerships, joint stock companies, associations’ or ‘other organizations of persons.’ (§ 17201.)”

Therefore, the City is not a “person” under Business & Professions Code sections 17200, et seq. since it is a public entity.

Accordingly, the demurrer to the first cause of action is SUSTAINED with 20-days leave to amend.

Second Cause of Action for Wrongful Termination in Violation of Public Policy:

Plaintiff’s claim for Wrongful Termination in Violation of Public Policy is based on Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (“Tameny”).

Government Code “section 815 bars Tameny actions against public entities.” (Miklosy v. Regents of Univ. of California (2008) 44 Cal. 4th 876, 900.)

Accordingly, the demurrer to the second cause of action is SUSTAINED with 20-days leave to amend.

Third through Eighth Causes of Action under FEHA:

Plaintiff’s Third through Eighth Causes of Action are based on violation of FEHA under Government Code section 12900 et seq.

Specifically, Plaintiff alleges claims for Harassment Based on Age (Gov. Code §§ 12940 et seq.); Harassment Based on Sex (Gov. Code §§ 12940 et seq.); Sex Discrimination (Gov. Code §§ 12940 et seq.); Age Discrimination (Gov. Code §§ 12940 et seq.); Retaliation (Gov. Code §§ 12940 et seq.); and Failure to Prevent Discrimination, Harassment and Retaliation (Gov. Code §12940(k).

The City contends that Plaintiff lacks standing to sue the City for violation of the FEHA because the Complaint does not allege that the City was Plaintiff’s employer.

“The FEHA . . . prohibits only ‘an employer’ from engaging in improper discrimination. (§ 12940, subd. (a).)” (Reno v. Baird (1998) 18 Cal.4th 640, 644.)

“[O]nly an employee, applicant, or a person providing services pursuant to a contract has standing to use under FEHA.” (Bradley v. Department of Corrections & Rehabilitation, (2008) 158 Cal.App.4th 1642, 1623.)

The Complaint alleges that “Plaintiff was licensed by Defendants to use their facilities as a Golf Instructor” and that “[p]ursuant to a valid licensing agreement, at all times, Plaintiff paid Defendants a monthly fee of $350.” (Complaint, ¶ 21, 22.)

Plaintiff further alleges that “Plaintiff’s business grew as a result of her skill and reputation as a golf instructor coupled with her affiliation with FGC.”) (Complaint, ¶ 24.)

Plaintiff also alleges that “[d]espite not working directly for FGC or AGC…” and “[a]lthough Plaintiff is not an official employee of the FGC….” (Comp. ¶¶26, 86.) Based on these allegations, Plaintiff has not alleged an employer-employee relationship with the City as required to allege violations of the FEHA.

Accordingly, the demurrer to the third through the eighth cause of action is SUSTAINED with 20-days leave to amend.

Moving Defendant to give notice.

Future hearing dates

7/7/23 – MSC

8/7/23 – Jury Trial

 

4

Jensen vs. O’Keefe

20-1130616

1.    Demurrer to Amended Complaint

2.    Motion to Strike Portions of Complaint

The Demurrer to the First Amended Complaint brought by Defendants Thomas J. O’Keefe and Thomas J. O’Keefe, Inc. has been rendered MOOT, by the Request for Dismissal filed on June 22, 2022. (ROA No. 120).

As Plaintiffs have dismissed the First, Second, Fourth and Fifth Causes of Action, to which the Demurrer was directed, no further order is necessary.

Motion to Strike:

The Motion to Strike brought by Defendants Thomas J. O’Keefe and Thomas J. O’Keefe, Inc. is MOOT in part and GRANTED in part, with 15 days leave to amend.

As indicated above, Plaintiffs filed a Request for Dismissal on June 22, 2022, which dismissed the First, Second, Fourth and Fifth Causes of Action. (ROA No. 120).

Based on the same, the requests to strike ¶28, ¶37 and ¶39 of the First Amended Complaint – allegations included within the dismissed claims – has been rendered MOOT.

The request for punitive damages in the Prayer, however, remains subject to a Motion to Strike. Here, it is unclear whether Plaintiff intended to seek punitive damages in connection with the Third Cause of Action; however, to the extent this was Plaintiff’s intention, the Motion to Strike is GRANTED, with 15 days leave to amend.

The Third Cause of Action is asserted solely by Plaintiff Paul Jensen and appears to arise from the attorney-client relationship articulated in ¶21 of the Complaint.

The Court finds insufficient allegations of oppression, fraud, or malice, in connection with this relationship and, consequently, the Motion to Strike is GRANTED. (¶21-¶22 and ¶33 of FAC; See also Civil Code §3294(c)).

In order to survive a motion to strike punitive damages, the Plaintiff must plead ultimate facts to show he is entitled to such relief. (Grieves v. Sup.Ct. (1984) 157 Cal.App.3d 159, 166).

The Request for Judicial Notice filed by Defendants is DENIED as irrelevant to this Motion. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18).

Moving Party is to give notice.

Future hearing dates

9/8/22 – Mtn. to Compel Answers to Form

5/19/23 – MSC

6/19/23 – Jury Trial

 

5

Mullins vs. McLaren Automotive, Inc.

20-1132845

1.    Motion for Reconsideration

2.    Motion to Compel Answers to Form Interrogatories

3.    Motion to Compel Answers to Special Interrogatories

4.    Motion to Compel Response to Requests for Admissions

5.    Motion to Compel Production

MOTION NO.1.

The Motion of defendants McLaren Automotive, Inc. (“MAI”) and O’Gara Coach Company, LLC (“O’Gara”) for Reconsideration of the Court’s January 13, 2022, order denying summary judgment or, in the alternative, summary adjudication in favor of Defendants and against Plaintiff Scott Mullins is DENIED.

Defendants move pursuant to Code of Civil Procedure Section 1008 which states in pertinent part: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. [¶] (b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”

Although Defendants have labeled the Motion as a Motion for reconsideration, the Motion appears to be a motion for renewal. “The statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in section 1008, subdivision (b). These provisions contain no requirement that a motion for renewal be made within the 10-day time period as is required for motions for reconsideration.” (Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970.) Accordingly, the court construes this Motion as a motion for renewal under section 1008, subdivision (b).

Defendants contend that there is good cause to reconsider and reverse the court’s January 13, 2022 order (“Order”) based on the recent decision of the California Court of Appeal, Fourth Appellate District, Division Two, in Everardo Rodriguez et al. v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez).

In Rodriguez, plaintiffs purchased a two-year-old Dodge truck from a used car dealership. (Rodriguez, supra, 77 Cal.App.5th at 215.) At the time plaintiffs purchased the truck, the manufacturer’s basic warranty on the truck had expired, however, the truck still had a limited powertrain warranty. (Ibid.) After experiencing electrical defects with the truck, plaintiffs sued the manufacturer, FCA US, LLC (“FCA”), for violation of the refund-or-replace provision. (Ibid.) FCA moved for summary judgment, arguing the truck was not a “new motor vehicle,” and the trial court granted FCA’s motion for summary judgment. (Ibid.) The sole issue before the Rodriguez court was “whether the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty’ covers sales of previously owned vehicles with some balance remaining on the manufacturer's express warranty.” (Ibid.) The court of appeal concluded “it does not and that the phrase functions instead as a catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” (Ibid.)

As for protections for used goods, Rodriguez states: “That’s not to say the Act has no protections for used goods; it does, but the protections are limited and bind the seller or distributor of the used product. (§ 1795.5.) Section 1795.5 provides express warranty protections for used goods only where the entity selling the used product issues an express warranty at the time of sale. The provision states: ‘Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter.’ (Italics added.) ‘It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.” (§ 1795.5, subd. (a), italics added.) (Rodriguez, supra, 77 Cal. App. 5th at 218.)

Plaintiff does not dispute that the Subject Vehicle was not a new vehicle (UMF 2, 3) and in fact alleges in the Complaint that “[t]he subject vehicle was sold as a ‘Certified Pre-Owned Vehicle.’” (Complaint, 3:14-15.) Therefore, Section 1795.5, is applicable here.

Plaintiff has shown that there is a triable issue of material fact as to whether MAI and/or O’Gara issued an express warranty at the time of sale when it issued Plaintiff an Extended Service Contract. (See Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1259 (Gavaldon) [stating that “because the Legislature generally conceived of service contracts and extended warranties as falling into distinct categories, it also provided that a manufacturer that confused those categories by labeling service contracts as warranties should assume the obligations imposed on manufacturers that issued express warranties.”].)

Specifically, here, Plaintiff has shown that at the time of sale he received a McLaren Extended Service Contract. (Plaintiff’s Decl., ¶ 7, Ex. I.)

The Extended Service Contract states that: “The service contract purchased by the Holder and provided by the Company to the Holder on the terms contained in the Document and that Confirmation Letter.” (Plaintiff’s Decl., ¶ 7, Ex. I.)

Plaintiff has submitted the Confirmation Letter, which is dated February 13, 2018, referenced in the Extended Service Contract. (Plaintiff’s Decl., ¶ 5, Ex. H.) The Confirmation Letter lists “WARRANTY NUMBER: QP04USA12027706” and identifies the Subject Vehicle by VIN; WARRANTY NUMBER; LINK PRODUCT; DATE 1st REGISTERED; START DATE; AND EXPIRY DATE. (AMF 19.) The letter further states that “This confirmation letter should be kept safely along with the Validation Certificated so that you have a record of entitlement which you can present to your McLaren retailer when service is required. (Plaintiff’s Decl., ¶ 5, Ex. H.)

In Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal. App. 5th 334, 336, 340 the court found that the manufacturer “partnered with a dealership to sell used vehicles directly to the public by offering an express warranty as part of the sales package,” and by doing so, “stepped into the role of a retailer and was subject to the obligations of a retailer under section 1795.5.” Similarly, here, Plaintiff has shown that there is a triable issue of material fact as to whether the letter from MAI which lists “WARRANTY NUMBER: QP04USA12027706” was a representation that the service contract was an extended warranty whereby MAI assumed the obligation imposed on manufacturers that issue express warranties. There is also a triable issue as to whether by issuing the letter MAI was partnering with O’Gara to sell used vehicles directly to the public by offering an express warranty as part of the sales package as in Kiluk.

Based on the foregoing, there is a triable issue of material fact as to whether the Extended Service Contract issued at the time of sale to Plaintiff was an express warranty.

Accordingly, Defendants Motion is DENIED.

Moving Defendants to give notice.

MOTION NO 2.

Defendant McLaren Automotive, Inc.’s (“MAI”) motion to compel plaintiff Scott Mullins to provide further responses to Form Interrogatories, Set One, Nos. 7.2, 7.3, 17.2, 50.1(a)-(c) and 50.2 is MOOT in part and GRANTED in part.

Although the Notice of Motion states that MAI moves to compel Form Interrogatories, Set One, Nos. 7.2, 7.3, 17.2, 50.1(a)-(c) and 50.2, the Separate Statement filed by MAI addresses Form Interrogatory Nos. 7.1, 7.2, 17.1, 50.1(a)-(c) and 50.2. Based on the Separate Statement, reference to Form Interrogatory Nos. 7.3 and 17.2 in the Notice of Motion appears to be an error, therefore, the court rules on Form Interrogatory Nos. 7.1, 7.2, 17.1, 50.1(a)-(c) and 50.2.

MAI has shown that on May 10, 2021, MAI served Form Interrogatories, Set One, on Plaintiff. (Gibson Decl., ¶ 2, Ex. A.) After an extension of time to respond, on July 21, 2021, Plaintiff served unverified responses to the Form Interrogatories on MAI. (Gibson Decl., ¶ 3, Ex. B.)

Plaintiff has shown that on April 25, 2022, after MAI filed its Motion, Plaintiff served a verification for his Responses to Form Interrogatories on MAI. (Humphries Decl., ¶ 1, Ex. A.)

On May 24, 2022, Plaintiff also served a Supplemental Response to Form Interrogatory, Nos. 7.1, 7.2, 17.1, 50.1(a)-(c) and 50.2 on MAI. (Humphries Decl., ¶ 2, Ex. B.)

MAI does not dispute that Plaintiff has served both a verification and a Supplemental Response to the Form Interrogatories at issue in this Motion. However, in its Reply, MAI argues that Plaintiff’s Response to Form Interrogatory No. 17.1 is still deficient.

In response to Form Interrogatory No. 17.1, Defendant states: “No. [¶] (a)-(d) Plaintiff denied numbers: 6-18, 21; 23; 24; 25 and 27-38. – Please see documents provided to Defendants in response to its request for production of documents. Plaintiff Scott Mullins, defendants and its authorized repair facilities.

Supplemental Responses, Ex. 1 to Declaration of Lisa M. Gibson.”

Plaintiff’s response does not sufficiently respond to Form Interrogatory 17.1 because for each response that is not an unqualified admission, Plaintiff does not separately state the number of the request; all facts upon which Plaintiff bases his response; name, address and telephone number of all persons who have knowledge of those facts; and identify all documents and other tangible things that support Plaintiff’s response and contact information of the person who has each document or thing.

Accordingly, the request to compel a further response to Form Interrogatory 17.1 is GRANTED.

Plaintiff is ORDERED to provide a further response to Form Interrogatory No. 17.1 within 20 days of the notice of this ruling.

The Motion is MOOT to the extent it seeks to compel Plaintiff to provide a verification and further response to Form Interrogatory Nos. 7.1, 7.2, 50.1(a)-(c) and 50.2.

Moving Defendant to give notice.

MOTION NO. 3:

Defendant McLaren Automotive, Inc.’s (“MAI”) Motion to Compel Further Responses from Plaintiff Scott Mullins to MAI’s First Set of Special Interrogatories Nos. 1-2, 3, 5, 6-16, 18, 20, 22-26, 29-30 is DENIED as MOOT.

MAI has shown that on May 10, 2021, MAI served Special Interrogatories, Set One, on Plaintiff. (Gibson Decl., ¶ 2, Ex. A.)

After an extension of time to respond, on July 21, 2021, Plaintiff served unverified responses to the Special Interrogatories on MAI. (Gibson Decl., ¶ 3, Ex. B.)

Plaintiff has shown that on April 25, 2022, after MAI filed its Motion, Plaintiff served a verification for his Response to Special Interrogatories, Set One on MAI. (Humphries Decl., ¶ 1, Ex. A.)

On May 24, 2022, Plaintiff also provided a Supplemental Response to Special Interrogatory Nos. 1-2, 3, 5, 6-16, 18, 20, 22-26, 29-30 on MAI. (Humphries Decl., ¶ 2, Ex. B.)

Accordingly, the Motion is DENIED as MOOT.

Moving Defendant to give notice.

MOTION NO. 4:

Defendant McLaren Automotive, Inc.’s (“MAI”) motion to deem the truth of the matters contained in MAI’s Requests for Admissions, Set One to Plaintiff Scott Mullins is DENIED as MOOT.

MAI has shown that on May 10, 2021, MAI served Requests for Admissions, Set One, on Plaintiff. (Gibson Decl., ¶ 2, Ex. A.) After an extension of time to respond, on July 21, 2021, Plaintiff served unverified responses to the Requests for Admissions on MAI. (Gibson Decl., ¶ 3, Ex. B.)

Plaintiff has shown that on April 25, 2022, after MAI filed its Motion, Plaintiff served a verification for his Response to Requests for Admissions, Set One on MAI. (Humphries Decl., ¶ 1, Ex. A.) On May 24, 2022, Plaintiff also provided a Supplemental Response to Requests for Admissions Nos. 27, 28, 30 and 31 on MAI. (Humphries Decl., ¶ 2, Ex. B.)

Accordingly, the Motion is DENIED as MOOT.

Moving Defendant to give notice.

MOTION NO. 5:

Defendant McLaren Automotive, Inc.’s (“MAI”) motion to compel Plaintiff to provide verifications, to produce documents and provide further responses to Requests for Production of Documents, Set One, Nos. 25 and 29 is DENIED as MOOT.

MAI has shown that on May 10, 2021, MAI served Requests for Production of Documents, Set One, on Plaintiff. (Gibson Decl., ¶ 2, Ex. A.) After an extension of time to respond, on July 21, 2021, Plaintiff served unverified responses to the Requests for Production of Documents on MAI. (Gibson Decl., ¶ 3, Ex. B.)

Plaintiff has shown that on April 25, 2022, after MAI filed its Motion, Plaintiff served a verification for his Response to Requests for Production of Documents, Set One, on MAI. (Humphries Decl., ¶ 1, Ex. A.)

On May 24, 2022, Plaintiff also provided a Supplemental Response to Requests for Production of Documents Nos. 25 and 29 on MAI. (Humphries Decl., ¶ 2, Ex. B.)

Accordingly, the Motion is DENIED as MOOT.

Moving Defendant to give notice.

Future hearing dates

7/1/22 – MSC

8/1/22 – Jury Trial

 

6

Thomas vs. McKeon

20-1166729

 

CONT. TO 7/7/22

7

Filek vs. Turelk, Inc.

21-1185728

Motion for Leave to Intervene

Plaintiff-in-Intervention Middlesex Insurance Company’s Unopposed Motion for Leave to Intervene is GRANTED.

Code Civ. Proc. § 387(a) provides that: “Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action.”

Section 387(a) also provides that: “A party served with a complaint in intervention may within 30 days after service move, demur, or otherwise plead to the complaint in the same manner as to an original complaint.”

Labor Code § 3853 provides: “If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.”

Plaintiff was allegedly injured during the course and scope of his employment. Intervenor provided and is providing workers’ compensation benefits to and on behalf of Plaintiff as a result of the incident. Based on the foregoing authorities, leave to intervene to recoup benefits paid is proper.

Plaintiff-in-Intervention Middlesex Insurance Company’s Unopposed Motion for Leave to Intervene is GRANTED.

Moving party to file and serve its complaint-in-intervention within 10 days and to give notice.

Future hearing dates

3/24/23 – MSC

4/24/23 – Jury Trial

8

Kalter vs. Mont

20-1150176

Motion to Consolidate

The motion is DENIED without prejudice.

Defendant Suzanne Mont requests consolidation of this unlimited civil case with the probate matter entitled, In Re: The Marilyn J. Kalter Living Trust et al., OCSC Case No. 30-2020-01144628 (“Probate Case”).

The Probate Case is the earlier-filed case which was initiated by Petition of Suzanne Mont dated 5/14/20 seeking (1) approval of first accounting, (2) appointment of trustee, and (3) confirmation of trustee’s right to sell property and confirm beneficiary distributions.

A Notice of Related Case was filed on 6/18/21.

California Rules of Court, Rule 3.300(h)(1)(C) states the Presiding Judge must determine whether a probate case should be ordered related:

“(h) Judicial action

(1) Related cases pending in one superior court

If all the related cases have been filed in one superior court, the court, on notice to all parties, may order that the cases, including probate and family law cases, be related and may assign them to a single judge or department. In a superior court where there is a master calendar, the presiding judge may order the cases related. In a court in which cases are assigned to a single judge or department, cases may be ordered related as follows:

(A) Where all the cases listed in the notice are unlimited civil cases, or where all the cases listed in the notice are limited civil cases, the judge who has the earliest filed case must determine whether the cases must be ordered related and assigned to his or her department;

(B) Where the cases listed in the notice include both unlimited and limited civil cases, the judge who has the earliest filed unlimited civil case must determine whether the cases should be ordered related and assigned to his or her department;

(C) Where the cases listed in the notice contain a probate or family law case, the presiding judge or a judge designated by the presiding judge must determine whether the cases should be ordered related and, if so, to which judge or department they should be assigned;

(D) In the event that any of the cases listed in the notice are not ordered related under (A), (B), or (C), any party in any of the cases listed in the notice may file a motion to have the cases related. The motion must be filed with the presiding judge or the judge designated by the presiding judge; and

(E) If the procedures for relating pending cases under this rule do not apply, the procedures under Code of Civil Procedure section 1048 and rule 3.350 must be followed to consolidate cases pending in the same superior court.”

Here, Presiding Judge Larsh in Department C1 has not ordered these cases related.

Moreover, this Department of the Superior Court does not have jurisdiction of the claims in the Probate Case.

Probate Code section 7050 states, “The superior court has jurisdiction of proceedings under this code concerning the administration of the decedent's estate.” Probate Code section 17000 provides for the Probate Court’s “Exclusive and Concurrent Jurisdiction”:

“(a) The superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.

(b) The superior court having jurisdiction over the trust pursuant to this part has concurrent jurisdiction of the following:

(1) Actions and proceedings to determine the existence of trusts.

(2) Actions and proceedings by or against creditors or debtors of trusts.

(3) Other actions and proceedings involving trustees and third persons.”

Probate Code section 17200 sets out the matters which may be the subject of a probate petition, including the following:

“(2) Determining the existence or nonexistence of any immunity, power, privilege, duty, or right.

(3) Determining the validity of a trust provision.

(4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument.

(5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.

[¶] . . .[¶]

(12) Compelling redress of a breach of the trust by any available remedy.”

“Even apart from the statutory authority, the probate court is a court of general jurisdiction with broad equitable powers.” (Estate of Kraus (2010) 184 Cal.App.4th 103, 114, citations omitted.)

Here, the Probate Case appears to involve matters which fall exclusively within the jurisdiction of the Probate Court. This Department of the Court lacks authority to order the cases related or to consolidate the matters in this Department.

Additionally, moving Defendant hasn’t filed a notice of the motion in the Probate Case as required by California Rules of Court, Rule 3.350(a)(1)(C).

The motion to consolidate is therefore denied without prejudice to the parties’ right to seek further relief from the Presiding Judge or the Probate Court.

Future hearing dates

10/27/22 – Demurrer / Motion to Strike

11/4/22 – MSC

12/12/22 – Jury Trial

9

BroadSpring, Inc. vs. Lakhiani

21-1233224

Motion to Quash Subpoena

Defendants’ motion is GRANTED in part and DENIED in part.

Defendants retained Kurt Stake, CPA of Grobstein Teeple LLP to prepare an accounting report dated 3/8/22. The report was submitted in opposition to Plaintiff’s motion to modify the preliminary injunction.

Plaintiff served a deposition subpoena to Grobstein Teeple LLP dated 4/15/22 which contains two requests for production of documents:

“1. ALL DOCUMENTS YOU received from DEEPAK or any other PERSON in connection with your preparation of the accounting attached hereto as Exhibit 1.

2. ALL COMMUNICATIONS between YOU and DEEPAK relating to the accounting attached hereto as Exhibit 1.”

The subpoena defines “DEEPAK” to include Defendant’s agents or attorneys.

If an “expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel.” (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.)

“The opinions of experts who have not been designated as trial witnesses are protected by the attorney work product rule. Their identity also remains privileged until they are designated as trial witnesses. An expert's identity and opinions are discoverable prior to designation only so long as it has become reasonably certain that the expert will testify at trial, or if fairness requires it.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297, citations omitted.)

The motion to quash is DENIED as to request no. 1. The deponent shall produce all documents, other than communications with Defendant or Defendant’s counsel, which were reviewed or relied upon in preparing the report that was filed with the Court.

This includes any documents provided by Defendant or Defendant’s counsel to the expert. These documents are not privileged because Defendants filed the report as well as Exhibit A thereto, which purports to contain “supporting documents reviewed for this analysis.”

Defendants have not met their burden of demonstrating that this request encompasses any privileged documents or documents protected by the right to privacy.

Plaintiff is entitled to conduct discovery to determine whether the expert reviewed or relied upon any other documents to prepare the report.

The motion to quash is GRANTED as to request no. 2. Plaintiff is not entitled to discovery of communications between Defendants or defense counsel and the expert at this time because Defendants have not designated the expert to testify at trial under Code of Civil Procedure section 2034 et seq.

Communications between the expert and Defendant or Defendant’s counsel remain protected because there has been no waiver of the privilege.

Plaintiff has not shown that it is reasonably certain the expert will testify at trial because the expert report addressed a narrow accounting issue related to the scope of the preliminary injunction rather than issues of liability or damages directly related to Plaintiff’s allegations in the complaint.

Fairness does not require disclosure of communications between the expert and Defendant or Defendant’s counsel.

The Court declines to award sanctions to either side because both sides acted with substantial justification.

Moving to give notice.

Future hearing dates

8/4/22 – Motion to Compel Production

12/9/22 – MSC

1/23/23 – Jury Trial

 

10

Gaytan vs. Avis Plumbing, Heating & Air Conditioning, Inc.

20-1156570

Motion for Terminating Sanctions

Defendants’ (Epic Home Services And Water Solutions, Craig A Smith, Avis, Inc., Smitty, LLC, Avis Home Solutions, Inc., CAS, LLC, Suzanne Smith, AMC Marketing Services, Inc.) Unopposed Motion for Terminating Sanctions is GRANTED.

Moving Defendants seek an order granting terminating sanctions.

When a party fails to obey a court order, the full range of discovery sanctions becomes available. (Code Civ. Proc. §§ 2023.010(g), 2023.030.)

The behavior justifying terminating sanctions includes repeated refusals to respond to discovery requests, violation of previous court orders, and destruction of evidence. Terminating sanctions are appropriate when a chronic pattern of delay or evasiveness by the defaulting party is egregious enough to warrant denial of a trial on the merits. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)

Moving Defendants have shown that Plaintiff has violated the court’s order on 12-23-21 discovery order by failing to provide further responses to discovery.

In order to justify terminating sanctions, responding party’s failure to comply must be willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Although the moving party bears the burden of proof, the moving party need only show the failure to obey earlier discovery orders. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his/her conduct - i.e., the burden is on the disobedient party to establish the lack of willfulness of his/her duty to perform. (Motown Record Co. v. Sup. Ct. (1984) 155 Cal.App.3d 482, 489.)

Moving Defendants have presented enough evidence showing that Plaintiff has willfully violated the court’s discovery order.

There is no opposition to the Motion. Thus, the Court finds that the disobedience was willful.

Based on the foregoing, the Court GRANTS Moving Defendants’ (Epic Home Services And Water Solutions, Craig A Smith, Avis, Inc., Smitty, LLC, Avis Home Solutions, Inc., CAS, LLC, Suzanne Smith, AMC Marketing Services, Inc.) Unopposed Motion for Terminating Sanctions.

Plaintiff Jhovany Gaytan Complaint is hereby dismissed as to Moving Defendants.

Moving Defendants to give notice.

Future hearing dates

7/14/22 – Motion to Compel Depo

7/29/22 – MSC

8/29/22 – Jury Trial

 

11

Kuffer vs. BMW of North America, LLC

21-1226427

Motion to Compel Arbitration

The motion to compel arbitration by Defendants BMW of North America, LLC (“Manufacturer”) and Irvine Eurocars, LLC d/b/a Irvine BMW (“Repair Dealership”) is DENIED.

Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25–26, holds,

“Sections 1281 and 1281.2, which govern petitions to compel arbitration, reflect a ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’ [Citations] When the parties to an arbitrable controversy have agreed in writing to arbitrate it and one has refused, the court, under section 1281.2, must ordinarily grant a petition to compel arbitration.” (footnotes omitted)

The burden is on the party opposing arbitration to show that the contract cannot be interpreted to cover the claims, and any doubt as to whether plaintiff's claims come within the arbitration clause must be resolved in favor of arbitration. (See EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320.)

Under Code of Civil Procedure section 1281.2, the first thing the Court must decide is whether there was an agreement to arbitrate, a meeting of the minds. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169.) This analysis is no different under the Federal Arbitration Act – there must be an agreement in writing to submit a controversy to arbitration. (9 U.S.C.A. § 2.)

Here, the motion is based on the arbitration clause in the Retail Installment Sale Contract (“RISC”) for the subject vehicle, which states the following:

“1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.

2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action […]

[¶]

Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.”

The RISC was executed by Plaintiff and the representative of Sterling BMW (“Selling Dealership”).

Although moving Defendants are not parties to the RISC, they argue arbitration can be compelled based on equitable estoppel and third-party beneficiary status.

Plaintiff’s complaint against moving Defendants includes first and second causes of action for breach of warranty against the Manufacturer and a third cause of action for negligent repair against the Repair Dealership. The Selling Dealership has never been a party to this action.

Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495 (Felisilda), states, “As a general rule, only a party to an arbitration agreement may enforce the agreement. [Citation.]” In Felisilda, “. . . the Felisildas brought an action against Elk Grove Dodge and the manufacturer, FCA US LLC (FCA) for violation of the Song-Beverly Consumer Warranty Act (Song-Beverly Act) (Civ. Code, § 1790 et seq.). Relying on the retail installment sales contract (sales contract) signed by the Felisildas, Elk Grove Dodge moved to compel arbitration. FCA filed a notice of nonopposition to the motion to compel. The trial court ordered the Felisildas to arbitrate their claim against both Elk Grove Dodge and FCA. In response, the Felisildas dismissed Elk Grove Dodge. The matter was submitted to arbitration, and the arbitrator found in favor of FCA. The trial court confirmed the arbitrator's decision. From the resulting judgment, the Felisildas appeal.” (Id, at p. 489; Footnote 1 omitted.) “In October 2015, Elk Grove Dodge moved to compel arbitration of the Felisildas’ claim. In so moving, Elk Grove Dodge argued the entire matter should be ordered to arbitration – including FCA, even though FCA was not a signatory to the sales contract. FCA filed a ‘notice of non-opposition’ to Elk Grove Dodge. FCA did not advance any argument in support of arbitration.” (Felisilda, supra, 53 Cal.App.5th at p. 491.)

Felisilda, supra, at pp. 495-496, further states:

“As a general rule, only a party to an arbitration agreement may enforce the agreement. [Citation.] However, there are several exceptions that allow a nonsignatory to invoke an agreement to arbitrate. [Citation.] The doctrine of equitable estoppel is one of the exceptions. [Citation.] [¶] Under the doctrine of equitable estoppel, ‘as applied in “both federal and California decisional authority, a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” (Boucher v. Alliance Title Co, Inc. (2005)] 127 Cal.App.4th [262,] 271 [25 Cal.Rptr.3d 440] [ (Boucher) ]; Goldman [v. KPMG, LLP (2009) ] 173 Cal.App.4th [209,] 217-218 [92 Cal.Rptr.3d 534] [ (Goldman) ].)

“By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement.” (Boucher, supra, 127 Cal.App.4th at p. 272 [25 Cal.Rptr.3d 440]; Goldman, supra, 173 Cal.App.4th at p. 220 [92 Cal.Rptr.3d 534].)’ [Citation.] [¶] ‘Where the equitable estoppel doctrine applies, the nonsignatory has a right to enforce the arbitration agreement.’ [Citation.] ‘ “The fundamental point” is that a party is “not entitled to make use of [a contract containing an arbitration clause] as long as it worked to [his or] her advantage, then attempt to avoid its application in defining the forum in which [his or] her dispute . . . should be resolved.” ’ [Citations.] ‘In any case applying equitable estoppel to compel arbitration despite the lack of an agreement to arbitrate, a nonsignatory may compel arbitration only when the claims against the nonsignatory are founded in and inextricably bound up with the obligations imposed by the agreement containing the arbitration clause.’ [Citation.] In determining whether the plaintiffs’ claim is founded on or intimately connected with the sales contract, we examine the facts of the operative complaint. [Citation.]”

Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229, provides, “And, of course, the decisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law. [Citation.]”

Glassburg v. Ford Motor Co., (C.D. Cal. Nov. 2, 2021) 2021 WL 5086358, at page 3 (Glassburg), states, “Ford argues that Felisilda v. FCA US LLC, 53 Cal. App.5th 486 (2020) compels a different result, but Ford is mistaken. In Felisilda, the consumer had originally brought their claim against both the dealer and the manufacturer. [Citation.] This difference is key. The existence of a claim against the dealer makes Felisilda inapposite because the claim against the dealer brought the Felisildas’ claim within the scope of the arbitration agreement, that is, within the class of claims described by the arbitration agreement as arbitrable. [Citation.] (‘[T]he arbitration provision in this case provides for arbitration of disputes that include third parties so long as the dispute pertains to the condition of the vehicle.” (emphasis added)). Because the Felisildas initially brought their claim against both the dealer and the manufacturer, their dispute was one that “include[d] third parties.’ [Citation.] The Court based its conclusion that equitable estoppel applied primarily on the fact that the Felisildas’ claim against the manufacturer fell within the scope of the operative arbitration clause. [Citation.]”

Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942, 950 (Ngo), “BMW alternatively argues that it need not meet the Kramer standard because equitable estoppel under California law was broadened by a recent decision: Felisilda v. FCA US LLC, 53 Cal. App. 5th 486, 266 Cal.Rptr.3d 640 (2020). We disagree. [¶] The plaintiffs in Felisilda purchased a used 2011 Dodge Grand Caravan from the Elk Grove Dodge dealership and signed a purchase agreement containing an arbitration provision that was virtually identical to the one Ngo signed. [Citation.] After discovering ‘serious defects’ with the car, the Felisildas sued both the dealership and the manufacturer. [Citation.] The dealership moved to compel arbitration. [Citation.] After the manufacturer filed a notice of non-opposition, the trial court compelled arbitration. [Citation.] The Felisildas then dismissed the dealership and the district court ordered it to arbitrate with the manufacturer alone. [Citation.] The California Court of Appeal affirmed. [Citation.] [¶] It makes a critical difference that the Felisildas, unlike Ngo, sued the dealership in addition to the manufacturer. In Felisilda, it was the dealership—a signatory to the purchase agreement—that moved to compel arbitration rather than the non-signatory manufacturer. [Citation.] Furthermore, the Felisildas dismissed the dealership only after the court granted the motion to compel arbitration. Accordingly, Felisilda does not address the situation we are confronted with here, where the non-signatory manufacturer attempted to compel arbitration on its own. We therefore decline to affirm on the ground of equitable estoppel.” In Ngo, “Ngo’s complaint named only BMW as a defendant.” (Id. at p. 945.)

Code of Civil Procedure section 1281.2(c) states in part:

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

[. . .]

(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.”

Here, similar to Ngo and unlike Felisilda, the Selling Dealership which was a signatory to the RISC has never been a party to the action.

Moving Defendants, the Manufacturer and Repair Dealership, are not signatories to the RISC which contains the arbitration clause.

In Felisilda, the signatory, Elk Grove Dodge, was a party to the action and moved to compel arbitration. Felisilda did not address whether a non-signatory could enforce the arbitration provision in the absence of the signatory as a party.

Here, since there is no claim or dispute with the Selling Dealership, there is an insufficient basis for finding that claims or disputes between Selling Dealership/Repair Dealership and Plaintiffs relate to their relationship with Defendants who are non-signatories. Therefore, equitable estoppel does not compel Plaintiff to arbitrate the claims against moving Defendants.

Defendants also assert that they can enforce the arbitration agreement as third-party beneficiaries.

Souza v. Westlands Water District (2006) 135 Cal.App.4th 879, 891 states, “ ‘ “The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract.” [Citation.]’ [Citation.] A party need not show that it was intended to benefit as an individual and may prevail by showing that it is a member of a class the parties intended to benefit. [Citation.] At the same time, it is not enough that the third party would incidentally have benefited from performance. [Citations.] ‘The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement. The contracting parties must have intended to confer a benefit on the third party.’ [Citation.] In determining whether the contract contemplates a benefit to the third party, the court must read the contract in light of the circumstances in which the parties entered into it. [Citation.]”

Defendants’ argument that they are third-party beneficiaries of the arbitration agreement is also unavailing. Nothing in the RISC or the arbitration provision shows that it was made for the benefit of Defendants. The terms of the agreement are clear in that they repeatedly grant only “you” (the Plaintiffs) and “us” (the Seller, and its employees, agents, successors or assigns) the right to compel arbitration. These defined terms do not suggest the parties also intended to provide a benefit to Defendants by allowing Defendants to compel arbitration against Plaintiff.

Further, a buyer entering into the RISC would not, by its terms, expect that the buyer was granting Defendants a right to compel arbitration or conferring the benefit of compelling arbitration on Defendants. The RISC does not contemplate providing a benefit to Defendants.

Therefore, the motion is DENIED.

Moving Party to give notice.

Future hearing dates

6/26/23 – Jury Trial