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.

 

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

 

APPEARANCES:  “Unless otherwise ordered by the Court, all Unlimited and Complex proceedings will be conducted via telephonic appearance through CourtCall with each party/attorney having the option to appear by CourtCall video if the [Court], in [its] discretion, permits a video appearance instead of an audio appearance.”  Based on Orange County Superior Court Third Amended Administrative Order No. 2020/06, paragraph 12(c), the Court requests that the parties appear by way of CourtCall.     If a party is unable to appear by way of CourtCall, please contact the Court Clerk.  Please see, Civil Limited Unlimited & Complex Appearance Process at:

 

·         Civil Covid-19;

 

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

 

·         Third Amended Administrative Order No. 20/06.

 

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

 

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

 

·         Civil Court Reporter Pooling; and

 

·         For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

 

PUBLIC ACCESS:  The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129895#) and PIN for this Department (12129895#). The public will be able to listen, but not participate in the proceedings.  The public access number and the access code for a particular unlimited civil courtroom can be obtained at:

 

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

 

Video CourtCall is now available.

 

 

TENTATIVE RULINGS ON LAW & MOTION MATTERS

 

Date: October 29, 2020 - NOW AT 10:00 a.m.

 

#

Case Name

Tentative

1

Smith vs. KVC Group, LLC

 

30-2020-01144000

 

1. Demurrer to Complaint filed by Defendants KVC Group, LLC.  and Michael Nguyen

2. Motion to Strike filed by Defendants KVC Group, LLC. and Michael Nguyen

 

The Court continues this matter to November 12, 2020 at 10:00 AM.

 

Future Hearings:

MSC: 1/14/22

Jury Trial: 2/14/22

 

2

K KREW, INC. vs. ARMBRUST

 

30-2019-01106203

Motion to Set Aside/Vacate Default filed by Defendants Harvey Armbrust and Esperanza Armbrust

 

CCP § 473(b) reads, in pertinent part:   

 

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . .  

 

Thus, a successful motion to set aside a default under § 473 must: (i) be filed within 6 months of the default; (ii) be accompanied by a proposed pleading to be filed; and (iii) establish mistake, inadvertence, surprise or excusable neglect. 

 

Timeliness.  Default was taken on 2/20/20.  The motion was filed on 7/20/20.  Under normal circumstances, the six-month period would have expired on 8/20/20, a month after the motion was filed.  As set forth in the Superior Court of California, County of Orange’s Fourth Amended Administrative Order No. 20/06, 3/17/20-5/22/20 were holidays for purposes of computing the time to file civil documents in court.  Accordingly, the six-month period did not conclude until October 2020.  The motion is timely. 

 

Proposed Pleading.  The motion is accompanied by a proposed answer.  Olsen Dec., Exhibit 1.

 

Mistake, inadvertence, surprise or excusable neglect.  “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.”  Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 2155-256 (“It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits. Thus, the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.”) and Lasalle v. Vogel (2019) 36 Cal.App.5th 127 (“The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully that an order granting it. As Justice Mosk put it in Rappleyea, ‘Because the law favors disposing of cases on their merits, `any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’”)

 

Here, the Declaration of Esperanza Armbrust establishes excusable neglect.  

 

Defendant has established no prejudice and the motion is GRANTED.

 

Future Hearings:

No future hearings

 

3

Gonzalez vs. Tranquilino

 

30-2019-01068394

Motion to Compel Physical/Mental Examination filed by Defendant Vicente A. Tranquilino

 

Pursuant to C.C.P. §2032.220(a), “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both…: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; [and] (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” 

 

“A defendant may make a demand under this article without leave of court after the defendant has been served or has appeared in the action, whichever occurs first.” (Id.) 

 

Initially, a review of the subject demand (attached as Exhibit A to Declaration of Anson Bui “Bui Declaration”), indicates the demand complied with C.C.P. §2032.220(c), as the demand indicates the “time, place, manner, conditions, scope, and nature of the examination…”  Regardless, Plaintiff did not respond or object to the demand. (See ¶3 of Bui Declaration). 

 

Pursuant to C.C.P. §2032.240(a), “[i]f a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand.” 

 

Thereafter, “[t]he defendant may move for an order compelling response and compliance with a demand for a physical examination.” (See C.C.P. §2032.240(b)).  

 

Here, Plaintiff did not appear for the exam (Exhibit B to Bui Declaration).  Plaintiff did not file an opposition and, therefore, does not dispute this. 

 

C.C.P. §2032.240(b) does not require efforts to meet and confer.  Indeed, it appears that efforts to meet and confer are required, only, following the submission of objections.  (See C.C.P. §2032.250(a)). Regardless, Defendant attempted to meet and confer, but Plaintiff refused. (Bui Declaration ¶ 5.) 

 

As such, Defendant Vicente Abarca Tranquilino’s Motion to Compel Plaintiff Adriana Gonzalez to submit to a physical exam will be granted. 

 

Defendant also makes a request for sanctions. Pursuant to C.C.P. §2032.240(c), “[t]he court shall impose a monetary sanction…against any party, person or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  

 

Likewise, pursuant to C.C.P. §2023.030(a), a court may impose sanctions against one engaging in a misuse of the discovery process, absent substantial justification or circumstances which would make the imposition of sanctions unjust.  

 

Pursuant to C.C.P. §2023.010(d), it a misuse of the discovery process to fail to respond or to submit to an authorized method of discovery. 

 

Here, Plaintiff provides no justification for not appearing at the properly noticed physical exam. 

 

Thus, the court orders sanctions, solely against Plaintiff, in the amount requested: $519.00, which includes $429.00 in attorney’s fees, $90.00 in costs. (See ¶6 (a), (b) and (c) of Bui Declaration).  

 

It should be noted that Defendant included the doctor’s fee for the missed appointment in the Declaration of Anson Bui, but did not request this fee in the amount of sanctions against Plaintiff in the Notice of Motion or Motion.  The Court declines to award an amount more than the amount in the Notice of Motion and Motion because Plaintiff has not received proper notice of the increased amount. 

 

RULING:  The Motion to Compel Physical Examination brought by Defendant Vicente Abarca Tranquilino is GRANTED, pursuant to C.C.P. §2032.240.  

 

Plaintiff Adriana Gonzalez is ordered to appear for a physical examination with Kevin J. Triggs, M.D., on December 3, 2020, at 1:30 p.m., at 1310 W. Stewart Drive, Suite 410, Orange, CA 92868. 

 

Additionally, Plaintiff is ordered to pay sanctions to Defendant, in the amount of $519.00, pursuant to C.C.P. §2032.240(c) and C.C.P. §2023.010(d). 

 

Future Hearings:

Motion to Compel Physical/Mental Examination: 11/5/20

MSC: 2/26/21

Jury Trial: 3/29/21

 

4

Wesco Insurance Company vs. Ron Tally Construction Inc.

 

30-2020-01127364

Application for Right to Attach Order/Writ of Attachment filed by Plaintiff Wesco Insurance Company

 

1. General Legal Standard for Writ of Attachment

 

Attachment is a prejudgment remedy that allows a creditor to place a lien on the debtor's assets to secure a debt in default. A prejudgment writ of attachment may be based on a written, oral, or implied contract. A writ of attachment may also lie on a claim of fraud, conversion or mistake and defendant's refusal to return property. (Klein v. Benaron (1967) 247 Cal. App. 2d 607.)

 

The requirements for obtaining a writ of attachment are: 

 

• the claim upon which the attachment is based is one upon which an attachment may issue;

 

• Plaintiff has established the probable validity of the claim;

 

• the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based; and

 

• the amount to be secured by the attachment is greater than zero. 

 

(Code Civ. Proc. § 484.090(a); see California Retail Portfolio Fund GmbH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 856.)

 

The burden is on the moving party to establish entitlement to a writ of attachment.  (Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116; see also Legislative Committee Comment to 1974 Addition to Code of Civil Procedure § 484.090 (stating that the “plaintiff has the burden of proving (1) that his claim is one upon which an attachment may be issued, and (2) the probable validity of such claim”).)

 

2. The Claim is One Which Attachment Can Issue

 

a. Request for Writ of Attachment for Money Must Be Based on a Contract 

 

Under California law, an attachment may issue only if the claim sued upon is (1) a claim “for money ... based upon a contract, express or implied;” (2) of a “fixed or readily ascertainable amount not less than $500;” (3) that is either unsecured or secured by personal property; and (4) that is a “commercial claim.” (Code Civ. Proc. § 483.010.) 

 

Here, Plaintiff has attached the 2015, 2016 and 2017 policies, which are the contracts. 

 

b. Amount Must Be Readily Ascertainable and not less than $500.00

 

The damages claimed by Plaintiff must be measurable by reference to the contract itself and the basis for computing damages must be reasonable and certain. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541.)

 

Examples of contracts with readily ascertainable damages include: 

 

• the amount of a purchase price, which is one of the sums Plaintiff seeks to recover (Redwood Fibre Prod. Co. v. Miller Mfg. Co. (1943) 61 Cal. App. 2d 505, 510.)

 

• a portion of the purchase price expressly promised in the contract to be repaid if a party did not deliver a trailer as agreed. (Stotland v. Mobile Homes Eng'g Corp. (1961) 197 Cal. App. 2d 815, 818.)

 

• average monthly profits on a coin-operated entertainment and music machine to fulfill the remainder of the obligation under the lease after the lease was breached. (Walker v. Phillips (1962) 205 Cal.App.2d 26, 27–28.)

 

Plaintiff claims it is owed $76,190.00 in additional premiums based on the 2015 policy and subsequent audit (Exhibits D and E to Declaration of James Buller (“Buller Declaration”).)

 

Plaintiff further claims it is owed $106,800.00 in additional premiums based on the 2016 policy and subsequent audit (Exhibits F and G to Buller Declaration.)

 

Lastly, Plaintiff claims it is owed $61,034.00 in additional premiums based on the 2016 policy and subsequent audit (Exhibits H and I to Buller Declaration.)

 

Here, the amount is more than $500.00.  Regarding whether the amount is fixed or readily ascertainable, Defendant contends that it is not, and that Plaintiff is silent as to how these insurance premiums were calculated. 

 

Plaintiff does not make an argument regarding this requirement in the moving papers. However, in the Reply papers, it claims that the process for computing the premium owed is expressly described in the insurance policies and subsequently specifically invoiced after audit, per the terms of the insurance agreement.

 

The policies specify that the “[p]remium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis.” (See Exhibits A, B, and C to declaration of James Buller.)

 

Moreover, the policies state:  This premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of: [¶] 1. All your officer and employees engaged in work covered by this policy; and [¶] 2. All other persons engaged in work that would make us liable under Part One (Workers Compensation Insurance) of this policy period. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligation.

 

The final premium will be determined after this policy ends by using the actual, and not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy.

 

Based on the foregoing, the amounts requested would be readily ascertainable and certain if they are based on admissible evidence and Plaintiff explained how the amounts were calculated.

 

Plaintiff has not explained where it obtained the information to calculate the amounts and how it calculated the amounts requested. Thus, the amounts requested are not certain or reasonable based on a contract.  

 

There was no admissible evidence put forth that the audits were based on payroll records, payroll amounts, or amounts of services paid. The 2015, 2016, and 2017 policies provide for the method of calculating the final premiums, which includes the amount spent on payroll or contract price for services and materials (See Exhibits A, B, and C to declaration of James Buller.)

 

However, Plaintiff provides zero evidence of payroll records, records of amounts paid for services, how payroll records or invoices are obtained, etc. Plaintiff further did not explain how the total amounts were computed after a remuneration. 

 

Accordingly, the Application for Writ of Attachment is DENIED. 

 

Defendant’s objections to ¶¶ 3, 4, 5, 6, 7, 8, and 9 are MOOT because the application is denied for failure to show the reasonable certainty of the amounts requested.

 

RULING:  The court DENIES Plaintiff Wesco Insurance Company’s Application for Writ of Attachment for $244,559.00 plus $535.00 in costs. Defendant’s objections to ¶¶ 3, 4, 5, 6, 7, 8, and 9 are MOOT.

 

Prevailing Party to give notice. 

 

Future Hearings:

MSC: 9/24/21

Jury Trial: 10/25/21

 

5

Parker vs. Chamness Biodegradables, LLC

 

30-2018-01035821

1. Motion to Compel Answers to Form Interrogatories filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Chamness Technology, Inc

2. Motion to Compel Production filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Chamness Technology, Inc

3. Motion to Compel Answers to Form Interrogatories filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Gary Chamness

4. Motion to Compel Production filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Gary Chamness

5. Motion to Compel Answers to Form Interrogatories filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Green R U, LLC

6. Motion to Compel Production filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Green R U, LLC

7. Motion for Sanctions filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker

 

MOTION NOS. 1 & 2: 

 

Plaintiffs Leonard Parker and EnNovus Group, LLC’s motion to compel defendant Chamness Technology, Inc., to serve further responses and/or responsive documents to: (1) Form Interrogatories, Set No. 1, Nos. 15.1, and 50.1 through 50.6; (2) Demand for Production and Inspection of Documents and Things, Set No. 1, Request Nos. 1 and 2, including compliance with document production; and (3) Document production in connection with Demand for Production and Inspection of Documents and Things, Set No. 1, Demand Nos. 16 and 18-28 is GRANTED, in part, and DENIED, in part.

 

Form Interrogatories:

 

Form Interrogatory No. 15.1:

 

Interrogatory No. 15.1 asks Defendant to identify each denial of a material allegation and each special or affirmative defense in its pleading. In response Defendants stated “Chamness Technology, Inc.’s Answer and Affirmative Defenses to Plaintiff’s Amended Complaint is not due as of the date of this response.” Defendant filed an Answer on February 25, 2019, therefore, at the time of the response, Defendant had an answer and affirmative defenses on file. Further, Defendant subsequently filed an answer to Plaintiffs’ First Amended Complaint on January 27, 2020. The burden is on the responding party to justify any objection or failure fully to answer the interrogatories. Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255. Defendant has not opposed the motion and therefore failed to satisfy its burden to justify its failure to fully respond to the interrogatory.

 

Therefore, the request to compel a further response to Form Interrogatory No. 15.1 is GRANTED. Defendant is ORDERED to provide a further response to the Interrogatory within 20 days of the notice of this order.

 

Form Interrogatory Nos. 50.1 through 50.6:

 

Form Interrogatory Nos. 50.1 through 50.6 request a variety of information regarding “each agreement alleged in the pleadings.” In response to these interrogatories, Defendant responded that: “[t]here was no Agreement between Chamness Technology, Inc. and Plaintiff.” Plaintiffs’ contend that the fact that Defendant did not have an agreement with Plaintiffs is irrelevant and that Defendant is still required to obtain the information and respond because the Complaint defines the term “Defendants” as including the responding party.

 

Since Defendant was not a party to the contract it cannot be expected to respond to the interrogatories which request detailed information about the agreement. Plaintiffs can obtain the information through discovery from defendant Chamness Biodegradables, LLC, the entity Defendant contends was the only defendant-party to all agreements with Plaintiff.  

 

Accordingly, the request to compel further responses to Form Interrogatory No. 50.1 through 50.6 is DENIED.

 

Demand for Production and Inspection of Documents and Things:

 

Request Nos. 1 & 2:

 

These Requests ask Defendant for all documents upon which Defendant bases the general or specific denials and affirmative defenses alleged in its Answer. Defendant responded to both Requests by stating that “Chamness Technology, Inc.’s Answer and Affirmative Defenses to Plaintiff’s Amended Complaint is not due as of the date of this response. Chamness Technology, Inc. accordingly reserves the right to change and/or supplement this response as additional facts are ascertained, analyses are made, legal research is completed, and contentions are formulated.” The definitions defined Answer as “‘Defendants’ Answer to Complaint” dated, signed and served on February 25, 2019, and all superseding answers filed by YOU if any.” Therefore, Defendant was required to respond based on its operative answer filed on February 25, 2019.

 

Accordingly, the request to compel further responses to Request Nos. 1 and 2 is GRANTED. Defendant is ORDERED to provide further responses to these Requests within 20 days of the notice of this order.

 

Document Production:

 

Request Nos. 16, 18-28: 

 

On January 2, 2020, the Court granted Plaintiffs motion to Compel, without objections, production of Documents and Written Responses to Demand for Production and Inspection of Documents and Things, Set No. 1. (ROA 103.)

 

On February 21, 2020, Defendant produced some responsive documents, but the documents were produced without reference to the categories for which they were produced, were not Bates stamped, and contained large redactions. (Patterson Decl., ¶ 7, Ex. F.) 

 

California Code of Civil Procedure section 2031.280, subdivision (a) requires that: “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.” (Code Civ. Proc. § 2031.280(a).) Since Defendant did not identify the category to which any of the documents produced were responsive, Defendant failed to comply with section 2031.280.

 

Further, the court’s prior order required Defendant to produce documents “without objections,” since Defendant waived all objections, including objections based on privilege or protection for work product, when it failed to timely respond to the Demand. (Code Civ. Proc. §2031.300(a).) By redacting documents produced, Defendant has in effect improperly asserted objections.

 

Accordingly, Plaintiff’s request to compel further documents for Request Nos. 16 and 18 through 28 is GRANTED. Defendant is ORDERED to produce all documents in response to these Requests, without redactions, and identify the category to which any of the documents produced are responsive within 20 days of the notice of this order.

 

Further, Defendants are ORDERED to pay $1,000 in sanctions to Plaintiff within 20 days of the notice of this order.

 

Plaintiffs to give notice. 

 

MOTION NOS. 3 & 4:

 

Plaintiffs Leonard Parker and EnNovus Group, LLC’s motion to compel defendant, Gary Chamness, to serve further responses and/or responsive documents to: (1) Form Interrogatories, Set No. 1, Nos. 15.1, and 50.1 through 50.6; (2) Demand for Production and Inspection of Documents and Things, Set No. 1, Request Nos. 1 and 2, including compliance with document production; and (3) Document production in connection with Demand for Production and Inspection of Documents and Things, Set No. 1, Demand Nos. 8-10, 20-22, and 27-28 is GRANTED, in part, and DENIED, in part.

 

Form Interrogatories:

 

Form Interrogatory No. 15.1:

 

Interrogatory No. 15.1 asks Defendant to identify each denial of a material allegation and each special or affirmative defense in its pleading. In response Defendants stated “Gary Chamness’ Answer and Affirmative Defenses to Plaintiff’s Amended Complaint is not due as of the date of this response.” Defendant filed an Answer on February 25, 2019, therefore, at the time of the response, Defendant had an answer and affirmative defenses on file. Further, Defendant subsequently filed an answer to Plaintiffs’ First Amended Complaint on January 27, 2020. The burden is on the responding party to justify any objection or failure fully to answer the interrogatories. Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255. Defendant has not opposed the motion and therefore failed to satisfy its burden to justify its failure to fully respond to the interrogatory.

 

Therefore, the request to compel a further response to Form Interrogatory No. 15.1 is GRANTED. 

 

Form Interrogatory Nos. 50.1 through 50.6:

 

Form Interrogatory Nos. 50.1 through 50.6 request a variety of information regarding “each agreement alleged in the pleadings.” In response to these interrogatories, Defendant responded that: “[t]here was no Agreement between Gary Chamness, individually and Plaintiff.” Plaintiffs’ contend that the fact that Defendant did not have an agreement with Plaintiffs is irrelevant and that Defendant is still required to obtain the information and respond because the Complaint defines the term “Defendants” as including the responding party. Further, Plaintiffs contend that Defendant Gary Chamness controls Chamness Biodegradables, LLC, the entity Defendant alleges was the only Defendant-party to all agreements with Plaintiffs. However, since Gary Chamness was not a party to the contract it cannot be expected to respond to the interrogatory. Plaintiffs can obtain the information through discovery from defendant Chamness Biodegradables, LLC, the entity Defendant contends was the only defendant-party to all agreements with Plaintiff.  

 

Accordingly, the request to compel further responses to Form Interrogatory No. 50.1 through 50.6 is DENIED.

 

Demand for Production and Inspection of Documents and Things:

 

Request Nos. 1 & 2:

 

These Requests ask Defendant for all documents upon which Defendant bases the general or specific denials and affirmative defenses alleged in its Answer. Defendant responded to both Requests by stating that “Defendant’s Answer and Affirmative Defenses to Plaintiff’s Amended Complaint is not due as of the date of this response. Defendant accordingly reserves the right to change and/or supplement this response as additional facts are ascertained, analyses are made, legal research is completed, and contentions are formulated.” The definitions defined Answer as “‘Defendants’ Answer to Complaint” dated, signed and served on February 25, 2019, and all superseding answers filed by YOU if any.” Therefore, Defendant was required to respond based on its operative answer filed on February 25, 2019.

 

Accordingly, the request to compel further responses to Request Nos. 1 and 2 is GRANTED. Defendant is ORDERED to provide further responses to these Requests within 20 days of the notice of this order.

 

Document Production:

 

Request Nos. 8-10, 20-22, and 27-28: 

 

On January 2, 2020, the Court granted Plaintiffs motion to Compel, without objections, production of Documents and Written Responses to Demand for Production and Inspection of Documents and Things, Set No. 1. (ROA 103.) On February 21, 2020, Defendant produced some responsive documents, but the documents were produced without reference to the categories for which they were produced, were not Bates stamped, and contained large redactions. (Patterson Decl., ¶ 7, Ex. F.) 

 

As discussed with respect to Motion Nos. 1 & 2, since Defendant did not identify the category to which any of the documents produced were responsive, Defendant failed to comply with section 2031.280, subdivision (a). Further, the court’s prior order required Defendant to produce documents “without objections,” since Defendant waived all objections, including objections based on privilege or protection for work product, when it failed to timely respond to the Demand. (Code Civ. Proc. §2031.300(a).) By redacting documents produced, Defendant has in effect improperly asserted objections.

 

Accordingly, Plaintiff’s request to compel further documents for Request Nos. 8 through 10, 20 through 22, 27 and 28 is GRANTED. Defendant is ORDERED to produce all documents in response to these Requests, without redactions, and identify the category to which any of the documents produced are responsive within 20 days of the notice of this order.

 

Further, Defendants are ORDERED to pay $1,000 in sanctions to Plaintiff within 20 days of the notice of this order.

 

Plaintiffs to give notice.

 

MOTION NOS. 5 & 6:

 

Plaintiffs Leonard Parker and EnNovus Group, LLC’s motion to compel defendant Green R U, LLC to serve further responses and/or responsive documents to: (1) Form Interrogatories, Set No. 1, Nos. 15.1, and 50.1 through 50.6; (2) Demand for Production and Inspection of Documents and Things, Set No. 1, Request Nos. 1 and 2, including compliance with document production; and (3) Document production in connection with Demand for Production and Inspection of Documents and Things, Set No. 1, Demand Nos. 16 and 18-28 is CONTINUED to December 3,2020.

 

No separate statement was filed in support of the Motion. This appears to be an inadvertent error because Plaintiffs have filed two Separate Statements with respect to their motion to compel defendant Chamness Technology, Inc. to provide further responses. (ROA 140 & 142.)

 

Since Defendants failure to comply with California Rules of Court, Rule 3.1345, subdivision (a)(2) and (a)(3), appears to be inadvertent, the, court will continue the hearing to allow Plaintiffs to file their separate statement.

 

Plaintiffs may file and serve their Separate Statement in support of the Motion no later than 9 court days before the continued hearing.  

 

Plaintiffs to give notice.

 

MOTION NO. 7:

 

Plaintiffs Leonard Parker and EnNovus Group, LLC motion for terminating sanctions against defendant, Chamness Biodegradables, LLC, is DENIED without prejudice.  

 

Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

 

If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court’s discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) 

 

Generally, severe sanctions like terminating sanctions for failure to comply with a court order are allowed only where the failure is willful.  R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 496 (1999) (“terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party”); Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967, 992 (2009) (“A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.”)

 

Before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.  Deyo v. Kilbourne, 84 Cal. App. 3d 771, 796 (1978).

 

Plaintiffs have submitted evidence to show that Defendant has violated the Court’s order, dated January 2, 2020, compelling Defendant to serve full and complete responses and/or responsive documents without objection to: (1) Form Interrogatories, Set No. 1; and (2) Demand for Production and Inspection of Documents and Things, Set No. 1. (Patterson Dec., ¶ 23.)

 

Although Defendant has not filed an opposition, Plaintiffs state that Defendant’s counsel has informed Plaintiff that because Defendant is not qualified to do business in California, it could not legally serve responses to discovery (or file an answer to Plaintiffs’ First Amended Complaint). (Patterson Dec., ¶ 19.) On February 21, 2020, Defendant’s counsel informed Plaintiffs’ counsel that Defendant was in the process of filing the necessary tax returns and paying the taxes necessary to requalify to do business in California. (Patterson Dec., ¶ 19.)  

 

Chamness Biodegradables, LLC is a limited liability company registered in Iowa. (Patterson Dec., ¶ 13; Exhibit N.) California Corporations Code section 17708.07(b) states, “The failure of a foreign limited liability company to have a certificate of registration to transact intrastate business in this state does not prevent the foreign limited liability company from defending an action or proceeding in this state.” (Cal. Corp. Code § 17708.07(b).) Therefore, even though Chamness Biodegradables may be prohibited from conducting business in California, it is not prohibited from participating in this lawsuit.  

 

The moving party must not only show that there was violation of the court’s order, but that such violation was willful. Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967, 992 (2009). Defendant did not respond to the discovery requests because it erroneously believed that it was prohibited from participating in the litigation. Therefore, the moving party has not shown that the violation was willful. Accordingly, terminating sanctions are not warranted. 

 

Defendant is ORDERED to pay $1,000 in monetary sanctions to Plaintiffs within 20 days of the notice of the ruling of this Order. 

 

Defendant is also ORDERED to serve full and complete responses and/or responsive documents without objection to: (1) Form Interrogatories, Set No. 1; and (2) Demand for Production and Inspection of Documents and Things, Set No. 1 within 20 days of the notice of the ruling of this Order.

 

Plaintiffs to give notice.

 

Future Hearings:

MSC: 1/15/21

Jury Trial: 3/15/21

 

6

Wagner vs. Physician Assistant Specialists-California, Inc.

 

30-2018-01020514

Motion for Summary Judgment and/or Adjudication filed by Plaintiff/Cross-Defendant Kirstin Wagner and Cross-Defendant Kultured Medicine Corp.

 

As a preliminary matter, the Court notes that deposition testimony submitted by the parties fails to comply with CRC, Rule 3.1116(c) which reads: “The relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”  Only portions of the testimony submitted by Plaintiff are marked and the testimony submitted by Defendant is not marked at all.

 

I.         MOTION FOR SUMMARY ADJUDICATION ON PLAINTIFF’S 1ST C/A

 

A plaintiff moving for summary adjudication on her/his/its own claim has the burden to produce admissible evidence on each element of a cause of action entitling her, him or it to adjudication. CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.

 

This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. LLP Mortg. v. Bizar (2005) 126 Cal.App.4th 773, 776.

 

If the plaintiff does so, the burden then shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” CCP § 437c(p)(1).

 

“Inasmuch as summary judgment is a drastic procedure and should be used with caution, the moving party’s papers are strictly construed, while the opposing party’s papers are liberally construed.” Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.

 

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119. If there is any doubt about granting a motion for summary judgment, then the motion should be denied. LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.

 

Plaintiff moves for summary adjudication on her First Cause of Action for Failure to Pay Waiting Time Penalties - Labor Code § 203.

 

Section § 202 reads governs the payment of wages upon termination.  It reads, in pertinent part:

 

(a) If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. . . .

 

If an employee is not paid wages within the time period mandated by § 202(a), the employee is eligible for penalties under Cal. Labor Code § 203(a) which reads, in pertinent part:

 

If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. . . .

 

In order to establish a violation of § 202 and claim penalties under § 203, a claimant must establish: (i) he/she is an “employee”; (ii) the employer intentionally failed or refused to pay wages that were due at the time of termination; (iii) the length of time before wages were paid or that they were never paid; and (iv) the daily rate of pay at the time of termination (for calculation of the penalties).  Cal. Labor Code §§ 202 and 203; CACIs 2700 and 2704.

 

Plaintiff fails to prove: (i) that she was an employee or (ii) the daily rate of pay at the time of termination. 

 

Plaintiff is a physician’s assistant.  In 2015 she joined Defendant PASCAL, a physician assistant staffing company.  Plaintiff characterizes the relationship as an employment relationship through which she was assigned to provide physician’s assistant services at surgeries in various hospitals through southern California.  However, Plaintiff does not provide any evidence to support her claim that she was an employee of PASCAL.  In her first undisputed material fact, she asserts she was an employee.  UMF 1 is supported by the following “evidence”:

 

Bulger Depo 62:19 – 23;

Wagner Depo. 47:6 – 8;

Wagner Depo. 181:14 – 182:17, Exhibit S;

Wagner Dec. ¶ 12;

 

The cited testimony from Plaintiff’s deposition addresses only when Plaintiff’s relationship with Defendant began and ended.  None of the testimony addresses the nature of the relationship.  The testimony from the Bulger deposition is not even evidence but colloquy between two attorneys.

 

 Plaintiff’s employment took place prior to the enactment of AB5, so there is no legal presumption of employment attendant to a physician’s assistant.  Plaintiff provides a W-2 among her exhibits which might be used to suggest an employment relationship but the W-2 supports an hourly rate of $30 per hour while Plaintiff seeks penalties based on daily pay of almost $1,000.  Even if Plaintiff worked 24-hour days, her claimed daily pay rate dictates an hourly rate of $40, so she does not present evidence of employment nor evidence of employment at the claimed rate. 

 

Plaintiff also fails to establish the claimed daily rate of pay.  In her motion, Plaintiff claims a daily rate of pay of either $983 or $972, calculated as follows:

 

“Thus, in the 12 months leading up to her last day, Ms. Wagner’s daily rate of pay was $983. ($252,768 / 52 weeks / 5 days per week = $972 in daily pay).

 

Motion at 7:4-5

 

Not only is the daily rate uncertain, but the entire calculation is based on guesswork and supposition.  Although Plaintiff based her daily rate calculation on yearly pay of $252,768, she acknowledges that amount is only her “best calculation” based on confusing pay practices and a lack of documents:

 

22. To the best of my calculation, in light of PASCAL’s confusing payment practices, and failure to produce payment records in discovery, in the 12 months leading up to my last day of employment with PASCAL of May 20, 2018, PASCAL paid a total of no less than $252,768 to me and Kultured. PASCAL paid me, through Kultured, $196,278 in profit percentage management fees. PASCAL paid me, through Kultured $14,700 in fees for being on call. PASCAL paid me directly $41,790 in $30/hour W2 wages.

 

Wagner Dec., ¶ 22 (offered as evidence in support of UMF 22 as to the yearly amount of pay). 

 

Further, the calculation is based on 52 weeks of work at 5 days a week but Plaintiff provides no evidence, at all, of how many weeks she worked or how many days a week.  She acknowledges that a portion of the yearly pay was a profit-sharing calculation which varied from month to month based, in part, on the hours she worked.  UMFs 4-6 and 9. Yet, she provides no evidence of how many hours she worked in any month, let alone in the month preceding her last day.  Similarly, she provides no evidence of how much profit there was to be shared in the last month, or for any month.

 

Because Plaintiff fails to meet her burden, the motion for summary adjudication of the first cause of action is DENIED.

 

 

 

II.       MOTION FOR SUMMARY JUDGMENT ON THE CROSS-COMPLAINT

 

Plaintiff moves as the Cross-Defendant for summary judgment/ summary adjudication of the cross-complaint.  A Defendant moving for summary judgment may prevail on the motion in one of three ways:

(1) by affirmatively negating at least one of Plaintiff’s essential elements;

(2) by showing that plaintiff does not have, and cannot get despite adequate discovery efforts, evidence to establish an essential element; or

(3) by presenting evidence as to each element of an affirmative defense upon which defendant bears the burden of proof at trial.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.  A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .”  Aguilar, 25 Cal. 4th at 850.  “A prima facie showing is one that is sufficient to support the position of the party in question.” Aguilar, 25 Cal.4th at 851.   Only when the defendant's initial burden is met, does the burden shift to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense.  CCP §437c; Aguilar, 25 Cal.4th at 851, 854.  

 

Plaintiff moves for summary judgment or, in the alternative, summary adjudication of the 1st, 3rd, 4th and 5th causes of action.  These are the remaining causes of action as the Second Cause of Action for Negligent Interference with Third Party Contract was dismissed on demurrer.  See 12/26/19 Minute Order. ROA 126. 

 

Defendant’s 1st, 3rd, 4th and 5th causes of action are based on the following assertions.  During her association with PASCAL, Wagner was a Director and Shareholder of PASCAL.  She was aware that PASCAL had a contract with Lakewood Regional Medical Center (“LRMC”) to provide temporary and occasional staffing and was looking to increase its business with LRMC by providing full-time staffing.  However, Wagner took the full-time job at LRMC and resigned from PASCAL which meant that PASCAL could not increase its business with LRMC as desired.  Cross-Complaint, ¶¶ 8-34

 

A.        1st Cause of Action for Intentional Interference with Third Party Contract

 

The elements of a cause of action for intentional interference with contractual relations are `(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’” Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App. 5th 989, 997. “To state a claim for disruption of a contractual relation, the plaintiff need not show the defendant induced an actual or inevitable breach of the contract. It is sufficient to show the defendant's conduct made the plaintiff's performance, and inferentially enjoyment, under the contract more burdensome or costly.”  Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 51.

 

In her motion, Plaintiff successfully established that Plaintiff’s acceptance of full-time employment with LRMC did not lead to or cause a breach of the staffing contract between LRMC and PASCAL.  Plaintiff established that even after she was hired by LRMC, LRMC desired to use PASCAL’s services just as they had previously but PASCAL refused.  UMFs 28-35, 49-53, 55-56.

 

 PASCAL did not provide evidence to contradict that evidence or raise a triable issue of material fact as to whether the contract had been breached or that performance was made more burdensome or costly.  Id.  PASCAL acknowledged in its opposition, that the claim is based upon a “future opportunity . . . [that] was forever disrupted . . .”  Opposition at 16:13-15.

 

Loss of a future opportunity is not breach of a contract.

 

Cross-Defendants motion for summary adjudication of the first cause of action is Granted.

 

B.        3rd Cause of Action for Intentional Interference with Economic Advantage

 

In order to recover on its 3rd cause of action for intentional interference with economic advantage, PASCAL must prove: (1) an economic relationship between PASCAL and LRMC, with the probability of future economic benefit to PASCAL; (2) Wagner’s knowledge of the relationship; (3) intentional wrongful acts by Wagner designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the PASCAL proximately caused by Wagner’s conduct.  Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118.  The alleged wrongful acts must be “independently wrongful” meaning that they must be unlawful in that it is “proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.”  San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528.

 

Plaintiff/Cross-Defendant argues that she cannot be liable on this claim because she did not commit any intentional wrongful acts designed to disrupt PASCAL’s relationship with LRMC. UMFs 59-61.  Plaintiff presents evidence that PASCAL’s economic relationship with LRMC remained unchanged after her hire. UMFs 28-35, 49-53, 55-56.  She made her prima facie case and the burden shifted to PASCAL.

 

In response, PASCAL presents evidence that it had proposed and was negotiating an increased economic relationship with LRMC, specifically a relationship where it would provide all physician’s assistant services for cardiothoracic surgeries after the retirement of the full-time employee Plaintiff replaced.  DAUMFs 8-19, 22-31.  The possibility of the increased economic relationship was foreclosed by Plaintiff’s hire.  DAUMFs 32-33.

 

Plaintiff argues that there was no independently wrongful act because her shareholder agreement did not prohibit her from taking the position and she did not use any confidential information in pursuing the position.  Plaintiff, however, was a shareholder and director of PASCAL and the evidence presented by Defendant raises a triable issue of material fact regarding whether Plaintiff’s pursuit of an opportunity which was also being pursued by the corporation was a breach of fiduciary duty—an independently wrongful act.  As one California court explained: 

 

“The law has long recognized the doctrine of corporate opportunity which prohibits one who occupies a fiduciary relationship to a corporation from acquiring, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence. [¶] . . . [¶] Three tests have been recognized as standards for identifying a corporate opportunity: the `line of business' test, the `interest or expectancy' test, and the `fairness' test. Under any test, a corporate opportunity exists when a proposed activity is reasonably incident to the corporation's present or prospective business and is one in which the corporation has the capacity to engage. Whether or not a given opportunity meets the requisite relationship is largely a question of fact to be determined from the objective facts and surrounding circumstances existing at the time the opportunity arises. Whether or not an officer has misappropriated a corporate opportunity does not depend on any single factor'"

 

Kelegian v. Mardichian (1995) 33 Cal.App.4th 982, 988-989 (italics in original).

 

Defendant has raised a triable issue of fact and Cross-Defendants’ motion for summary adjudication of the 3rd cause of action is DENIED.

 

C.         4th Cause of Action for Negligent Interference with Economic Advantage

 

In order to establish its fourth cause of action, PASCAL must prove: (1) an economic relationship between PASCAL and LRMC with a reasonably probable future economic benefit or advantage for PASCAL; (2) Wagner’s awareness of the existing relationship and awareness that if she did not act with due care, she could interfere with the probable future economic benefit or advantage; (3) Wagner’s negligent conduct; and (4) resulting harm from loss of the probable future advantage. North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.

 

Plaintiff argues that she cannot be liable on this claim because she did not harm the relationship between PASCAL and LRMC.  However, as set forth in connection with the 3rd cause of action, while there is no triable issue of material fact as to whether Plaintiff harmed the current agreement between PASCAL and LRMC, there is a triable issue of material fact as to whether Plaintiff harmed a prospective economic relationship between PASCAL and LRMC. 

 

Accordingly, Cross-Defendants’ motion for summary adjudication of the fourth cause of action is DENIED.

 

          D.        5th Cause of Action for Breach of Fiduciary Duty

 

Plaintiff argues that this claim must fails because she gave notice and did not use confidential information in negotiating her hire with LRMC.  As set forth in connection with the 3rd cause of action, Plaintiff, as a Director and shareholder of PASCAL, had a fiduciary duty to PASCAL and a triable issue of material facts exists as to whether she acted in violation of that duty by accepting the full-time position that PASCAL was trying to staff.   Accordingly, Plaintiff’s motion for summary adjudication of the fifth cause of action is DENIED. 

 

Wagner’s Objection 1 and 2 are SUSTAINED. 

 

Future Hearings:

Jury Trial: 12/14/20