Superior Court of the State of California

County of Orange

 

DEPT C14 TENTATIVE RULINGS

 

Judge Robert J. Moss

 

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 the parties agree to submit on the Court’s tentative ruling, please call the Court Clerk to inform the court that all parties submit on the Court’s tentative ruling.  The tentative ruling will then become the order of the Court upon a party or parties informing the Court that all parties submit to the Court’s tentative ruling. 

 

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 (12129881#) and PIN for this Department (12129881#).  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)

 

 

Date: OCTOBER 23, 2020

 

 

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1.     

Bacon Sons LLC vs. Perception Robotics, Inc.

 

 

30-2018-01000372

 

1)   MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES

2)   MOTION TO DEEM FACTS ADMITTED

 

TENTATIVE RULING:

 

Defendant OnRobot Los Angeles, Inc. fka Perception Robotics, Inc.’s (defendant) motion to compel responses to its second set of form interrogatories and deem the matters in its first set of requests for admission admitted are MOOT to the extent they seek an order compelling responses or deeming facts admitted. (See ROA Nos. 171 & 173, Bhamre Decls. ¶¶ 6-7.)

 

Sanctions are GRANTED in the total amount of $1,920 (i.e., $960 per motion) in favor of defendant and against plaintiff Bacon Sons LLC, payable within 30 days of notice.

 

 2.

 

Binit Corporation Inc. vs. Perez

 

 

30-2020-01129637

 

MOTION TO BE RELIEVED AS COUNSEL OF RECORD

 

TENTATIVE RULING:

 

Attorney Kenneth A. Bryant’s motion to be relieved as counsel of record for Plaintiff Binit Corporation, Inc., dba ARCO #42770 is granted.  The order shall become effective upon the filing of the proof of service of the executed order. 

 

 3.

Brandow & Nastar, Inc. vs. Lurie, Zepeda, Schmalz, Hogan & Martin

 

 

30-2020-01132238

 

DEMURRER TO CROSS-COMPLAINT

 

RULING

 

Cross-defendant Brandow & Nastar, Inc.’s demurrer to cross-complaint is taken off calendar as moot. A first amended cross-complaint has been filed as of 8/24/20.

 

Moving party to give notice.

 

 4.

Burkholder vs. Harbor View Hills Homeowners Association

 

 

30-2019-01111542

 

DEMURRER TO COMPLAINT

 

TENTATIVE RULING:

 

The request for judicial notice by defendants Harbor View Hills Homeowners Association, Richard Lucey, Rose Januzzi, David Hodgkins, and Ammcor Property Management is granted as to Exs. B-G and H.  (Cal. Evid. Code 452(d); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)  However, with the exception of Ex. H, the court takes judicial notice of the fact that the documents were filed and/or recorded, but not of the truth of their contents.   (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.)  The request for judicial notice is denied as to Exs. A and F. 

 

The demurrer by defendants Harbor View Hills Homeowners Association, Richard Lucey, Rose Januzzi, David Hodgkins, and Ammcor Property Management, is overruled.  Each challenged cause of action is timely and sufficiently pled. 

 

Moving parties are ordered to file an Answer to the Complaint within 10 days.  Plaintiffs to give notice.

 

 

 5.

Calangi vs. Tran

 

 

30-2019-01067219

 

MOTION FOR LEAVE TO AMEND COMPLAINT

 

TENTATIVE RULING:

 

Plaintiff Ronald M. Calangi’s motion for leave to file first amended complaint is DENIED.

 

By this motion, plaintiff seeks leave to amend so that he may file a first amended complaint that adds Doe defendants to his claims for motor vehicle negligence and general negligence (see Calangi Decl. at Ex. D [proposed first amended complaint]), as his present complaint names no Doe defendants at all. (See ROA No. 1.)

 

But it is too late to fictitiously identify new defendants for either motor vehicle or general negligence in this personal injury case. The statute of limitations for personal injury actions is two years. (Code Civ. Proc., § 335.1.) The subject car accident occurred on 5/3/17, and it is now 10/23/20. Thus, any attempt to add a new defendant to a personal injury claim arising from the subject accident, whether by a fictitious name or a true name, would by untimely by over a year at this point and barred by the applicable statute of limitations.

 

“The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492.) Furthermore, if no “Doe” defendants were included in the original complaint, there is no “relation back” when an individual is named for the first time in an amended complaint filed after the statute of limitations has run. (See Banke, et al., Cal. Practice Guide: Civ. Pro. Before Trial (The Rutter Group 2020 supp.) ¶ 8:46; Kerr-Mcgee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 598-599; Kralow Co. v. Sully-Miller Contracting Co. (1985) 168 Cal.App.3d 1029, 1035-1036.) 

 

Accordingly, the motion is denied. (See Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 654 [court properly denied leave to amend where proposed new claims “were without merit as a matter of law”].)

 

Moving party shall give notice.

 

 

6.

Hernandez vs. Thandi

 

 

30-2019-01081311

 

MOTION TO CONSOLIDATE

 

RULING:

 

Defendants Satnam Singh Thandi and Prime Time Shuttle, Inc.’s motion to consolidate this case with Sharon Wang v. Bernard Hernandez, et al., Orange County Superior Court case number 30-2019-01085742-CU-PO-CJC and Muhammad Pervez v. Satnam Singh Thandi, et al., Orange County Superior Court case number 30-2019-01091438-CU-PA-CJC is CONTINUED to 01/22/2021 at 09:00 AM in this department to permit Moving Party to file the notice of motion in the related actions.  CRC Rule 3.350(a)(1)(c).

 

 

 7.

McPherson vs. Chou

 

 

30-2020-01128713

 

DEMURRER TO COMPLAINT

 

TENTATIVE RULING:

 

Defendants Jeremy Chou and Miriam Chou’s demurrer to the second cause of action in plaintiffs Chanel McPherson, Saxon Benvenuti a minor, by and through her Guardian ad Litem, Nicole Browning’s complaint is overruled.  Defendants shall file and serve an answer to the complaint within ten (10) day.

 

 

 

 8.

Moore vs. The Estate of Freda Mae Davis

 

 

30-2019-01121154

 

1.    MOTION TO COMPEL ANSWERS TO FORM INTERROGATORIES

2.    MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSIONS

 

CONTINUED TO 01/08/2021

 

 9.

 

Patno vs. Farmers and Merchants Bank of Long Beach

 

 

30-2016-00892336

 

MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

 

TENTATIVE RULING:

 

Defendant Farmers and Merchants Bank of Long Beach’s motion for summary adjudication of the first, second, third, and fourth causes of action of the Third Amended Complaint, as against individual plaintiffs Desiree Patno and Jay Jones, is granted.  (CCP 437c.) 

 

As to the first and second causes of action for violation of CA Commercial Code 3420, moving party has met its initial burden under CCP 437c(p)(2) of presenting evidence showing that plaintiffs Patno and Jones cannot establish the essential elements of ownership/possession and damages, as the accounts were held by the entity plaintiffs.  (Moving Party Separate Statement, Fact Nos. 2, 5, 7, 9, 11, 13, 15, 16; In re Bartoni-Corsi Produce, Inc. (9th Cir. 1997) 130 F.3d 857, 86 [“the commercial code's conversion provisions do not preempt the general principle of common law conversion that a party can only maintain a conversion action for property that it owns at the time of the alleged conversion”].) 

 

As to the third and fourth causes of action for negligence, moving party has met its initial burden under CCP 437c(p)(2) of presenting evidence showing that plaintiffs Patno and Jones cannot establish the essential elements of duty and damages, as the accounts were held by the entity plaintiffs.  (Moving Party Separate Statement, Fact Nos. 2, 5, 7, 9, 11, 13, 15, 16; Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1076 [duty owed to account holder].) 

 

As moving party has met its initial burden, the burden shifts to plaintiffs Patno and Jones to present evidence sufficient to create a triable issue of material fact.  Plaintiffs have not opposed the motion and have not done so.  Accordingly, the motion is granted as to plaintiffs Desiree Patno and Jay Jones.

 

Moving party to give notice.

 

 

10.

Rodriguez vs. Kovacs

 

 

30-2020-01123164

 

1.    MOTION TO COMPEL ARBITRATION

2.    JOINDER

 

TENTATIVE RULING:

 

The petition by defendant MJIC, Inc. to compel arbitration is granted.  (CCP 1281.2.)  Plaintiffs Raquel Rodriguez and Frank Rodriguez are ordered to arbitrate all of their claims against this defendant.  The action is stayed as to defendant MJIC, Inc., pending completion of arbitration between these parties.  (CCP 1281.4.) 

 

An OSC re: Completion of Arbitration is set for 04/26/2021 at 08:30 AM in Department C14.

 

The joinder by defendants Kimberly Kovacs and MyJane is denied without prejudice.  The motion was not served timely.  (CCP 1005(b), 1010.6(a)(4)(B).)  Further, the proof of service is defective.  (CCP 1013b(b)(1).) 

 

Defendant MJIC, Inc. to give notice on both motions.

 

 

11.

Vitabest Nutrition, Inc. vs. Dr. Rath Health Programs B.V.

 

 

30-2019-01114358

MOTION TO QUASH SERVICE OF SUMMONS

 

TENTATIVE RULING:

 

Specially appearing defendant Dr. Rath Health Programs B.V.’s (DRHP) motion to quash service of process is CONTINUED to 01/22/2021 at 9:00 a.m. in this department.

 

Plaintiff Vitabest Nutrition, Inc. dba Vit-Best Nutrition’s (plaintiff) request for jurisdictional discovery is GRANTED. Plaintiff may conduct jurisdictional discovery, including against DRHP, as to the nature of the relationship between DRHP and Dr. Rath International, Inc. (DRI), and all other relevant factors/considerations discussed in Cosper v. Smith & Wesson Arms. Co. (1959) 53 Cal.2d 77, 83-84 and Yamaha Motor Co., Ltd. v. Superior Court (2009) 174 Cal.App.4th 264, 273-274 & fn. 9. (See U.S. ex rel. Miller v. Public Warehousing Co. KSC (9th Cir. 2016) 636 Fed.Appx. 947, 948-949; see also Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee (1982) 456 U.S. 694, 706, 708-709 [“By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s determination on the issue of jurisdiction,” which may include, inter alia, the allowance or imposition of jurisdictional discovery]; Hickory Travel Systems, Inc. v. TUI AG (N.D. Cal. 2003) 213 F.R.D. 547, 555 [noting in the context of a challenge to personal jurisdiction for lack of proper service, that “[i]n the absence of sufficient facts to demonstrate jurisdiction, the Court has discretion to allow jurisdictional discovery”].) 

 

Plaintiff shall give notice.

 

 

12.

Wessels vs. Recreational Aviation Foundation

 

 

30-2018-00970710

1.    MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES; SET ONE (AVCO)

2.    MOTION TO COMPEL PRODUCTION (AVCO)

 

TENTATIVE RULING:

 

Plaintiff, Anthony Longobardo’s motion to compel specially appearing defendant Avco Corporation to compel further responses to form interrogatories 1.1, 3.1-3.7, 4.1-4.2, 12.1-12.7, 13.1-13.2, and 14.1-14.2 and further response to Request for Production of Documents, Nos. 1-75 is granted.  By responding the discovery related to jurisdictional issues, Avco does not make a general appearance. 

 

Defendant shall serve further, verified responses, without objection, within ten (10) days.

 

Plaintiff Longobardo to give notice. 

 

 

13.

Elling vs. Tustin Hills Healthcare, Inc.

 

 

30-2020-01146724

MOTION FOR TRIAL PREFERENCE

 

TENTATIVE RULING:

 

The motion by plaintiff Carolyn S. Elling, by and through her attorney-in-fact, Susan Elling for trial preference is granted.  (CCP 36.)  The Mandatory Settlement Conference set for 4-15-22, and jury trial set for 5-16-22, are vacated.  The court sets a Mandatory Settlement Conference for Friday 01/15/2021 at 08:30 AM, and Jury Trial for Tuesday 02/16/2021 at 09:00 AM in this department.

 

Moving party to give notice.